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Kia ora Ms Van Wey,

Thank you for your Official Information Act request, to the Ministry of Justice, safely received 9 October 2023. You are seeking information concerning ACC reviews - Part 5 of the Accident Compensation Act.

It is believed that the information to which your request relates, is more closely connected to the functions of ACC. In these circumstances, we are required by section 14 of the OIA to transfer your request. However, ACC advise me that you have made an identical request to them and as such, they cannot accept a transfer from Justice. ACC advise me that you will hear further from them concerning your request and by no later than 9 November 2023. Should you need to contact ACC, please do so via email at [email address].

If you are not satisfied with this response, you have the right to complain to the Ombudsman under section 28(3) of the Act. The Ombudsman can be contacted by emailing [email address].

Many thanks for contacting the Ministry of Justice.

Nga mihi

Jan Morison
Team Leader, Ministerial Relations and Services
Governance and Assurance
Level 6 Justice Centre | Aitken Street
DX Box SX 10088 | Wellington
[email address] | justice.govt.nz

-----Original Message-----
From: AS Van Wey <[FOI #24371 email]>
Sent: Monday, 9 October 2023 4:54 pm
To: [Ministry of Justice request email]
Subject: Official Information request - ACC reviews- Part 5 of the Accident Compensation Act

Dear Ministry of Justice,

I am writing to you in hopes that you will be able to assist me in finding case law, secondary legislation, research papers, government reports, parliamentary discussions, or any other information which includes instructions, definitions, or guidelines on how Reviewers are to conduct a hearing in accordance with section 140 of the Act.

The Accident Compensation Act states:

140 Conduct of review: general principles The reviewer may conduct the review in any manner he or she thinks fit, but he or she must—
(a) comply with section 138; and
(b) comply with any other relevant provision of this Act and any regulations made under this Act; and
(c) comply with the principles of natural justice; and
(d) exercise due diligence in decision-making; and
(e) adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner.

141 Conduct of review: hearing to be held
(1) In the course of conducting a review, the reviewer must hold a hearing unless—
(a) the applicant withdraws the review application; or
(b) the applicant, the Corporation, and all persons who would be entitled to be present and heard at the hearing agree not to have a hearing.
(2) The reviewer must hold the hearing at a time and place that are—
(a) agreed to by all persons who are parties to the application and the reviewer; or
(b) decided on by the reviewer if those persons do not agree.
(3) The reviewer must take all practicable steps to ensure that notice of the time and place of the hearing is given—
(a) to every person entitled to be present and heard at it; and
(b) at least 7 days before the date of the hearing.
(4) The reviewer may admit any relevant evidence at the hearing from any person who is entitled to be present and be heard at it, whether or not the evidence would be admissible in a court.

145 Review decisions: substance
(1) In making a decision on the review, the reviewer must—
(a) put aside the Corporation’s decision and look at the matter afresh on the basis of the information provided at the review; and
(b) put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act.

The terms "investigative approach", "informal", "principles of natural justice" and "substantive merits" are broad terms, with various understanding of meanings. Thus, I seek information which clearly describes what it means to:
(1) adopt an investigative approach, and how a reviewer demonstrates they have adopted an investigative approach; and
(2) conduct the review in an informal manner, and how a reviewer demonstrates they have conducted the review in an informal manner; and
(3) conduct a review in a formal manner, and how a reviewer demonstrates they have conducted the review in a formal manner; and
(4) comply with the principles of natural justice, and how a reviewer demonstrates they have complied with the principles of natural justice; and
(5) decide the matter only on the basis of its substantive merits, and how a reviewer demonstrates they have complied with deciding the matter on only the basis of its substantive merits; and
(6) when claimant's have a legitimate expectation that ACC employees conduct themselves in accordance with ACC's policies (if those policies are consistent with the law) in order to be procedurally fair (a condition of the Code), how does a Reviewer reconcile the legitimate expectation of "procedural fairness" with instructions to "put aside the policy and procedure followed by the Corporation".

To clarify, when I'm told by a reviewer that I must provide a written submission as required by Tribunals and Courts, this seems to me to be a "formal" approach. When I'm told the process is for me to state my case, followed by ACC stating their case, then me providing a rebuttal, that seems like a "formal" approach as in what happens in a Tribunal or NZ Court. I seek information which clarifies what the court considers formal vs informal.

When witnesses are excluded (including ACC employees involved in the decision process or expert medical witnesses) and I'm told I cannot ask question's of witnesses, this seems inconsistent with my understanding of compliance with the principles of natural justice, informality, due diligence in decision-making, and adopting an investigative approach. This also seems inconsistent with section 141(4) of the Act, and 145(1), as well as obligations under section 22 of the Privacy Act, IPP 8. I would like to better understand claimant's rights to witnesses, the necessary attributes of the principles of natural justice, due diligence in decision-making, and adopting an investigative approach.

When I'm told I cannot ask questions, such as making sure we have a common understanding of the words we use, this seems contrary to the idea of adopting an "investigative approach" or "informal approach.

When ACC refuses to provided the relevant information, and instead provides irrelevant information, this seems contrary to the principles of natural justice and due diligence in decision-making, and section 141(4) of the Act. [It's also contrary to ACC's policies.]

When the hearing is adjourned, and the reviewer refuses to provide a new hearing date to finish the hearing, this seems inconsistent with all of sections 140 and 141 of the Act.

When I'm told the reviewer cannot hear the substance of the issue (all of the muck ups that led to bad decision making, such as breaches of obligations under the Act, the Code, the Privacy Act, or other legislation) or ACC's policies consistent with the Act, the Code and the Privacy Act, this seems inconsistent with the reviewer's obligations under section 145(1) of the Act Act.

When the Reviewer requests ACC to provide a review number for something I did not request to be reviewed (because no decision had been made because after 3 months ACC hadn't investigated my complaints), this seems inconsistent with section 134 of the Act.

134 Who may apply for review
(1) A claimant may apply to the Corporation for a review of—
(a) any of its decisions on the claim:
(b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay:
(c) any of its decisions under the Code on a complaint by the claimant.

When I'm notified by the Review Contractor of a hearing date and time, for a review that ACC never discussed with me at the first instance, nor any case conference was held, this seems inconsistent with s 141 of the Act.

To be clear, I am not seeking legal advice. I am seeking information which already exists, which will have commentaries on the interpretation of Part 5 of the AC Act. I have made this request to FairWay and the ICRA, however FairWay refused my request and the ICRA have not responded, despite publicly stating they will answer will answer all questions, and being subject to the Code of ACC Claimants' Rights (ss 40 41 and 45 of the Act).

I make this request under the Accident Compensation Act, ss 140(b) and 40, 41 and 45 (the Code of ACC Claimants' Rights), the OIA, and any other relevant legislation.

Thank you very much for your assistance.

AS Van Wey

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