Tēnā koe,

 

Thank you for contacting the office of Hon Peeni Henare - MP for Tāmaki
Makaurau, Minister for ACC, Minister of Forestry, Minister of
Tourism, Minister for Veterans, Minister for Whānau Ora, Associate
Minister for the Environment, and Associate Minister of Health.

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Nāku noa, nā

Office of Hon Peeni Henare

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Kia ora,

 

On behalf of Hon Peeni Henare thank you for your request for official
information below.

 

Your request asks for information which is not held by this Office, but is
believed to be held by ACC. For this reason, my office has decided to
transfer your request to ACC under section 14(b)(i) of the Act. You can
expect a response from ACC in due course.

 

Thank you for writing.

 

Ngā mihi,

 

Office of Hon Peeni Henare

Minister for ACC

Minister of Forestry

Minister of Tourism

Minister for Veterans    

Minister for Whānau Ora

Associate Minister for the Environment

Associate Minister of Health (Māori Health)

Private Bag 18041 | Wellington 6160

P: 64 (4) 817 9323

 

Authorised by Hon Peeni Henare, Wellington

 

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-----Original Message-----
From: AS Van Wey <[FOI #24372 email]>
Sent: Monday, 9 October 2023 5:02 PM
To: P Henare (MIN) <[Peeni Henare request email]>
Subject: Official Information request - ACC Reviews - Part 5 of the AC Act

 

Dear Peeni Henare,

 

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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This is an Official Information request made via the FYI website.

 

Please use this email address for all replies to this request:

[3][FOI #24372 email]

 

Is [4][Peeni Henare request email] the wrong address for Official
Information requests to Peeni Henare? If so, please contact us using this
form:

[5]https://fyi.org.nz/change_request/new?bo...

 

Disclaimer: This message and any reply that you make will be published on
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[6]https://fyi.org.nz/help/officers

 

If you find this service useful as an Official Information officer, please
ask your web manager to link to us from your organisation's OIA or LGOIMA
page.

 

 

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hide quoted sections

Kia ora Amy
Please find attached our response to your official information request
dated 9 October 2023. If you have any questions about the response you can
contact us at this [1]address, for all other matters please use our
contact form at: [2]https://www.acc.co.nz/contact/ alternati... give us a
call on 0800 101 996.
If you are having trouble viewing the PDF, please ensure you have the
latest version of Adobe Acrobat Reader. To download this freeware please
click [3]here. 
Ngâ mihi

Sara Freitag (she/her)
Acting Manager | OIA Services

' 027 973 7330
* PO Box 242, Wellington 6011
ACC cares about the environment – please don’t print this email unless it
is really necessary. Thank you.
 

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