Independence of ACC process queried

Warren Forster
Warren Forster
A leading Dunedin ACC lawyer says he cannot recommend clients take disputed claims to a tribunal to be resolved because of concerns about the independence of the process.

About 6000 Accident Compensation Corporation decisions are reviewed annually.

Those cases are heard by private company FairWay Resolution Services, which is contracted by ACC to do so.

Barrister Warren Forster said documents released under the Official Information Act raised serious questions whether or not the two organisations were independent of each other.

"ACC is providing feedback to FairWay which it wants FairWay to give to reviewers, to change the way that they are making decisions," Mr Forster said.

"The law specifically says reviewers have to put to one side ACC policy — that’s what they are required to do by law — whereas what ACC is doing is giving reviewers their policy and saying ‘Do it this way’."

Mr Forster said a clearly arms-length review process was needed,  under the  auspices of the Ministry of Justice.

"These reviewers are making decisions about people which involve hundreds of thousands, sometimes millions of dollars.

"It has a lifelong impact on people . . . something needs to change quickly because people turn up to review hearings across New Zealand daily, and they can’t have any confidence that the person sitting in that room has any lawful delegation or is demonstrably independent."

He also had doubts whether ACC’s delegation of review services to FairWay was lawful.

An ACC spokesman said the corporation acknowledged its contractual relationship with FairWay might create a perception reviewers were not independent of ACC.

"This is a perception, not the reality, and we note that Miriam Dean QC conducted a thorough review of the statutory review process in 2016 and was satisfied that, despite this perception, reviewers do in fact act independently of ACC," he said.

Documents supplied to the Otago Daily Times by Mr Forster set out that ACC established a weekly  review monitoring panel to "provide feedback to FairWay Resolution Limited regarding the quality of the review decision".

Examples of such feedback included:

 "The panel did not consider that the reviewer had provided sufficient weight to the specialist assessments when the claimant only had a supportive GP, friend . . . and self-assessment to counter the decision."

"The comment from the reviewer  . . . that the  national consistency panel does not focus on the particular needs of a client and that ‘ACC’s almost sole focus was on the cost’ was felt to be . . . wholly inaccurate representations of ACC’s decision-making process and the role of the NCP."

 "FW need to be mindful to appoint a reviewer who does understand these issues."

"It’s a service being provided to ACC, it’s being managed by ACC, it’s being performance-managed by ACC, all of the feedback is by ACC," Mr Forster said.

"This has nothing from a claimant’s perspective in it and it’s completely inappropriate and undermines the independence and trust that anyone has in the review process."

The ACC spokesman said  ACC monitored the quality of the services provided by FairWay  and gave feedback.

"The panel provides monthly feedback to FairWay about adverse decisions where we feel it is warranted . . . that feedback largely focuses on the weighting given to clinical evidence or legal application of the Accident Compensation Act."

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