THERE IS SOMETHING WRONG WITH THE ACC REVIEW PROCESS

Date of article: 30 October 2002

The most recent published targets attributable to ACC in ridding itself of stock [that is how ACC recipients are described in the latest buzz phrase employed by ACC] are in the region of 15,000 ACC recipients this year.

The question must be asked, why if so many people are being dropped off annually, is there only approximately 3000 appeals progressing to the review stage?

From our own research the present Regulations governing review costs have a lot to answer towards the above figures. Most ACC recipients feel the drag of being on a compensation rate that is 20 % less than the income that they enjoyed prior to their injury. All households live to the level of their income at any given time so it should not be surprising that the majority of the remaining 12,000 ACC recipients who do not bother to appeal decisions to revoke or suspend their cover, fail to do so on economic grounds.

The fact is the District Court has established the benchmark for a successful represented appeal in that forum, which in O’DONNELL v ACC was equated as being $2.200.00, in other words, the actual and reasonable costs plus disbursements in bringing that appeal. There is no difference in cost to an advocacy service or a lawyer in properly preparing and bringing a review hearing before the Disputes Resolution Service Limited process. The Minister however has regulated the approved rate of a successful or reasonably brought review down to a point whereby ACC recipients in the main do not contest adverse ACC decisions on economic grounds, as they are required to find the difference between the charges of reputable advocates and lawyers and the regulated scale of costs.

On the one hand the ACC recipient is confronted with the cost of proving ongoing entitlement, while the Crown in the form of ACC has all of the financial resources and lawyers at its beck and call to dispute that ongoing entitlement. This in a compulsory no fault accident insurance scheme. Given the nature and intent of the scheme one has to ask the question whether the current regulated costs are in fact ultra vires the Act. [The writer is of the opinion that such is the case].

The ruling of the District Court in O’DONNELL [Judge Willy] was based on the precept that an ACC entitlement should not be considered as being a standard civil claim in which Court costs that are granted never equate to the actual costs of such civil actions. Rather the District Court determined that in the testing of ACC eligibility that this type of civil litigation when successful should not be seen to disadvantage the ACC recipient.

It is time for the Minister to take this concept aboard and amend the present regulations accordingly if this government is to live up to its stated claim of ensuring the rights of those person’s that it was elected to represent.

Article contributed by: D V [Mike] Dixon-McIver

Advkit Para Legal Services