Appeals, complaints and dispute resolution

Contributed by Morgan Speight and current to 1 March 2017

Code of ACC claimants' rights

The Code of ACC Claimants' Rights helps to guide the way that ACC deals with your claims. The Code is designed to create a positive relationship between you and ACC. It gives you rights, and creates obligations on ACC. The Code is designed to protect the way that you are treated whilst you are working with ACC, and does not discuss your entitlements.

The purpose of the Code of ACC Claimants' Rights (the Code) is to:

* Provide you rights as an ACC claimant

* Make sure ACC offers the highest possible level of customer service

* Help you to have your issues sorted out in a fair manner

What rights do you have?

1. The right to be treated with dignity and respect.
2. The right to be treated fairly, and to have your views considered.
3. The right to have your culture, values, and beliefs respected.
4. The right to have a support person, or support people.
5. The right to effective communication.
6. The right to be fully informed.
7. The right to have your privacy respected.
8. The right to complain if ACC breaches your rights.

If Your Rights Have Been Breached

If you feel as one of these rights has been breached you can make a complaint by:

• Raising the issue with the person that you have been dealing with at ACC, or by speaking to that person's manager about the issue; or
• Lodging a complaint with ACC's complaints service using this form. The complaint will be forwarded to the Office of the Complaints Investigator.

It does not cost anything to make a complaint.

The Customer Resolution Team at ACC will talk to you about your complaint and gather information from you and from any ACC staff or provider involved and try to sort out the problem.

The Office Of The Complaints Investigator

The Office of the Complaints Investigator is a part of ACC, and is not completely independent, but it is required to handle complaints in an independent way.

The Office of the Complaints Investigator will look into your complaint, and will make a decision about whether or not there was a breach of your rights in writing. It will give reasons for the decision that it makes, and tell you about any actions that it will take such as directing ACC to

• Apologise to you;
• Meet with you to discuss your views;
• Provide you with information that is relevant;
• Provide you with an interpreter;

The Office of the Complaints Investigator can also recommend that ACC change a decision that it has made, or recommend that there is another kind of action taken to remedy the broken rights.

Complaints

Who Can Complain?

You can make a complaint to ACC if you are:

• A client; or
• Have been asked to be a representative of an ACC client.

You cannot make a complaint to ACC on behalf of a client without their permission to do so.

What Can the Complaint Be About?

The complaint can be about any of the following:

• An incident or an issue with the service,
• The way that your claim was managed,
• The products or services provided by ACC,
• The way that ACC staff, or people who worked with ACC followed policies or procedures set by ACC.

How to Make a Complaint:

There are a lot of different way to make a complaint including:

• Talking to the person that your complaint is about, by calling one of these numbers:
  • For claim related issues: 0800 101 996
  • For issues with a treatment provider service: 0900 222 070
• Ask to talk to the manager of the person you wish to make a complaint about
• Ring the ACC's customer resolutions team (0800 650 222)
• Fill out the online complaint form
• Fill out and send in a complaint form
• Email ACC: customerfeedback@acc.co.nz

If you don't want to complain to ACC, you can also make a complaint to an independent organisation. Which organisation will be able to help you the most will depend on what the complaint is about:

• You have concerns about privacy: Office of the Privacy Commissioner

• You feel as though ACC treated you unfairly: Office of the Ombudsen

• Your complaint is about a health or disability service, or it is about a treatment provider: The Health and Disability Commissioner

What Does the Complaint Need to Contain?

If you decide to make a complaint to ACC, you will need to include certain information so that the problem can be dealt with quickly. You will need to tell ACC:

• Your full name,
• You address and contact detail (email address and phone number),
• What your ACC number is (you do not need to include this if you do not know what it is),
• Some details about the complaint, such as
  • What happened,
  • When it happened (if you can remember, if you cannot remember the exact date it might be helpful to set out approximately when it happened),
  • Who the person was that you are complaining about,
• What kind of outcome you are hoping for.

What Happens Once You Have Made a Complaint?

Once ACC has received your complaint the Customer Resolutions Team will collect all of the information that it needs from both you and the person or people that the complaint is about.

The Customer Resolution Team will keep in touch with you and keep you up to date with what is happening with your complaint. They will talk to you about the outcome of the complaint, and can help you decide what to do next if you aren't happy with the way that the complaint was dealt with.

Mediation/Conciliation:

The Customer Resolutions Team can talk to an ACC claimant about options to help them resolve the complaint. They can discuss the option of setting up a mediation or conciliation meeting. This is where an expert, independent person, can meet with the claimant and ACC to help to sort out the complaint.

Mediation is free and does not affect your other rights, or your entitlements.

Review

What is a Review?

If you disagree with a decision that ACC has made about your claim you ask for the decision to be looked again. When you ask for a review, ACC will have an independent employee look over its decision again to check whether or not they think that the original decision maker got their decision right. After you have asked for the decision to be reviewed, this independent decision maker will get in touch with you.

Who can apply?

You or someone you ask to help you, can ask to have any decision reviewed if you disagree with it. After the decision is made, you will have three months to ask for the decision to be looked at. You can ask for a reviewer to look at any decision made by ACC about your claim.

Can you complain about ACC and ask for a Review?

If you want to make a complaint about the way that ACC dealt with your claim, you can do that as well and it won't stop you from asking for a review. If you do make a complaint, you can ask for the review to be put on hold until the complaint is dealt with.

What kind of decision can be reviewed?

You can ask for a decision about any of the following things to be reviewed:

• Whether you qualify for cover;
• What kind of injury you have, and what 'category' it falls into;
• Whether ACC are going to cover your injury;
• What kind of entitlements ACC will give you;
• A decision made about a complaint that you filed;
• When ACC has delayed processing your claim, and you think that it was not a reasonable delay.

What are the time limits for applying?

After the decision is made, you have three months to ask for it to be reviewed.

If you do not apply within this time, you will need to explain why you were not able to apply within the time frame. This means that if you do not apply within the three months, you might still be able to have the decision reviewed if your injury or trauma made it too difficult for you to think about and apply for the review.

You might also be allowed to apply late if you were prevented from applying in time by someone that you asked to apply for you, or if ACC did not give you the information that you needed to apply. If this is the case, you will need to explain this in your application for review.

How can you apply?

To ask for the decision to be looked at, you can either fill out this form, or you can write a letter to ACC.

If you write a letter, there are a few things that you will need to make sure that you say: that you want the decision to be reviewed, when the decision was made, why you want the decision to be reviewed and what decision you want to be made. If you have any special needs, or want any cultural support, then you will also need to write this in your letter.

It is recommended that you fill out and send in the form, rather than write a letter.

What happens after you apply?

ACC will write you a letter once they have your application for review. The letter will tell you that they have received the application, and tell you when they got it. ACC will then review their own decision before it goes to a Review Hearing, and it will look at the decision that it made to see whether or not it still thinks that you should not be covered. The original decision will be looked at by someone who did not make the original decision. If ACC still thinks that you shouldn't be covered, then the matter will be referred on to an independent service to arrange a Review Hearing or an alternative dispute resolution (such as mediation, conciliation or facilitation) meeting.

Mediation or Alternative Dispute Resolution (ADR):

When ACC receives a review application they may ask you to attend an alternative dispute resolution (ADR) meeting. If you decide that you don't want to do an ADR meeting, then the case will go to a review hearing. ADR can only happen if both you and ACC decide that it is a good idea. ADR may be a helpful solution for a wide range of issues as well as any relationship breakdown between yourself and ACC. Sometimes mediation won't be the best way to clear up the problem, and a review hearing will be the best option.

You can also request a ADR. You can start this process by ringing, emailing or writing a letter to ACC and asking for an ADR. The process for asking for a ADR is not formal, and you can do it any way that you want to.

At an ADR, you meet with someone from ACC, and an independent person helps you talk about how to fix the problem. The ADR practitioner does not make any decisions for you, it is up to you and ACC to try and find an outcome that you both agree on. Anything that you decide at an ADR has to happen.

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Review Hearing:

A review is different from going to court, it is an informal process. A review hearing is where you and ACC are given a chance to talk about the decision. The person who makes the decision at a review hearing is the "reviewer". They are independent, and does not work for ACC. The reviewer is there to make sure that the right decision is made, and will listen to both you and ACC fairly.

What happens before a review hearing?

Before a review hearing, the reviewer may ask you to attend a preliminary hearing or a case conference before the review hearing happens.

Case Conference: A case conference is used to make sure that everybody who is involved in the review hearing is ready for the hearing, and to make sure that everyone knows why you disagree with the decision that ACC made. The date for the review hearing will usually be decided at a case conference. Sometimes, the reviewer will ask if you want the decision to be made without you having to actually go to a hearing, called 'making a decision on the papers'. This means that instead of going to a hearing, everything that you and other people would say at the hearing is written down and given to the reviewer, and the reviewer will make their decision after reading all of the documents. If you have not attended a mediation by the time of the case conference, the reviewer may ask you if you want to try mediation. If you don't want to do this, then you do not have to.

Preliminary Hearing: A preliminary hearing will usually happen over the phone, ACC and the reviewer will usually both be present for the hearing. For more information on mediation click here.

What happens at a review hearing?

During the hearing, the reviewer may ask questions to make sure that they understand everything that is being said. If you have any questions, the reviewer will be able to help answer them and make sure that you understand everything that is said.

The review hearing will be recorded, so that if the reviewer needs to listen to something again, or forgets exactly what was said, they can go back and re-listen to the conversation. Having the hearing recorded means that the decision won't be made based on what the reviewer thinks that they remember, because they can go back and listen to the hearing again. This recording will be kept for two years.

Who can attend a review hearing?

Reviewer: A review hearing will always have an independent reviewer, who does not work for ACC, they will make the decision about whether or not ACC made the right decision.

You: Usually, you should be at the review hearing. If you are unable to get to the meeting because something happens, you will need to tell the review support officer as soon as you can. You can ask someone to attend the hearing for you and they can give speak at the hearing for you, or you can write down what you would have said at the hearing and have someone give that information to the reviewer at the hearing. If you cannot attend you may also ask for the hearing to be re-scheduled, however if the date cannot be changed, then the hearing will happen without you there.

ACC: There will usually be someone from ACC at the hearing. Sometimes there won't be a person at the hearing, instead they may ask to attend over the phone. If this happens, you will be able to hear everything that they say, and they will be able to hear you.

Support person: If you want to have a friend or support person at the hearing with you, you are welcome to bring someone along. You might want to have someone like a friend or a family member with you. You are allowed to bring someone to the hearing. If a friend or support person is going to come, you will need to let the interviewer know.

Lawyers and Advocates: If you want to have a lawyer present, or want someone to come along to talk on your behalf, then you are welcome to bring them to the hearing. If the reviewer decides that ACC made the wrong decision, and that you should have been paid by ACC, they will also make a decision about whether or not ACC should contribute to the fees charged by your lawyer or advocate.

Witnesses and Experts: Sometimes you might need to have a witness or an expert at the hearing to talk about the injuries that you have. These people will have a chance to talk at the hearing and tell the reviewer about what they saw, or what your injuries are. If a witness or expert talks at the hearing, they will have to take an oath or an affirmation, which is a promise to tell the truth.

This might include a doctor, nurse, or another medical practitioner that you talked to about your injury. They will be able to give the reviewer their opinions about your injuries and help them to make a decision about your compensation. Sometimes, if you or ACC disagrees with what the expert or witness says, then they might be questioned about what they saw or did about the injuries. If you think that the witness is saying something that did not happen, you can ask them about it.

If you want to have a witness or expert at the hearing you will need to tell ACC and the reviewer about them. You will need to tell the reviewer and ACC about your witness or expert at least three days before the hearing. You will need to let ACC and the reviewer know that you have a witness or expert, and what they are going to say. You don't need to have a script from them, but you will need to give ACC and the reviewer a good idea of what they are going to say.

What kind of things will a reviewer use to make a decision?

• Any information that ACC has about your injury (including everything that ACC used to make their decision about your claim.
• The Accident Compensation Act 2001.
• What the witnesses and experts said at the hearing.
• The recording of the hearing.
• Any new information that ACC didn't have when they originally made the decision.
• Anything else that the reviewer thinks will help them make their decision.
• The reviewer will not make their decision based on ACC's policies. (The reviewer is independent and does not have to use the same tests or meet the same requirements that ACC decision makers have to follow.

When will the reviewer make their decision?

The reviewer will not tell you their decision at the hearing. The reviewer will consider all of the information. Their decision will be in writing, and will set out why the decision was made. The reviewer will have 28 days to decide and tell you their decision after the hearing.

What will the reviewer decide?

The reviewer will make a decision about whether or not ACC made the right decision. The reviewer might decide:

• That ACC made the right decision; or
• That ACC made the wrong decision, and the reviewer makes a new decision; or
• That ACC made the wrong decision, and that ACC needs to remake the decision (this might include the reviewer telling ACC to talk to another doctor or medical practitioner).

Will ACC have to cover your costs?

If you had to pay for things related to the review (like for transport or a lawyer) then the reviewer will also be able to decide whether ACC should have to cover those costs as well.

This means that ACC may be asked to contribute to the fees charged by your lawyer or advocate, your bus fares or any other things that you had to pay for because of the hearing. If you want the reviewer to make a decision about whether or not ACC should pay for these expenses, you will need to talk to the person who is in charge of your case about it.

The reviewer may not be able to tell ACC to pay for all of the expenses because there are limits on how much can be charged to ACC. The full list of what ACC can be ordered to pay can be found here.

If the reviewer decides that ACC should have decided your case differently, then ACC must help you pay for the costs of review, and might have to pay for the costs of other people to attend the review as well. It is up to the reviewer to decide whether or not ACC will have to pay for other people. Even if you lose and the reviewer decides that ACC made the right decision, the reviewer may still make ACC contribute to what you had to spend on the review. This will be if the reviewer thinks that it was reasonable for you to ask for the issue to be reviewed.

What happens after the decision is made?

After the reviewer has made a decision, you will receive a copy of the written decision. By law, the decision must be followed which means that if the reviewer decides that ACC should have paid you compensation, then they will have to do so. ACC will not be able to change the decision of the reviewer.

What if ACC changes its decision?

If ACC changes their decision and you get the outcome that you want, ACC should contribute for what you spent in preparing for the review.

What if you think that the reviewer made the wrong decision?

If you believe that the reviewer made the wrong decision, you might be able to ask to have it looked at again. You will be able to do this if the reviewer's decision tells you that you have the right to appeal. The reviewer's decision will tell you the rights that you have and how to appeal their decision. If you decide to appeal the reviewer's decision, you will need to have it looked at by a court. There is more information on how to appeal the decision and what is involved with the appeal process in the next chapter.

Appealing to the District Court

A decision made on Review can be challenged in the District Court. If you ask for this to happen, you are appealing the decision to the courts who will rehear the case. Rehearing the case means that the court will look at the same evidence that was considered at the Review. Sometimes new evidence will be allowed, or the Judge will hear some of the evidence again. This happens if the judge decides that it is necessary to do so.

Time limits

An appeal against a decision made at a Review must be made within 28 days of receiving the decision. The Court may give leave for a late appeal, however this can only happen if the Court considers that it would be unfair not to allow a late appeal.

To be unfair, there would need to be a good reason for the decision not to have been appealed in time.

Decisions about a breach of the Code of ACC Claimants' Rights:

You cannot appeal a decision made at a Review about the Code of ACC Claimants' Rights. This is the only decision made by a Reviewer that cannot be taken to the District Court. The decision that is made by the independent Reviewer at a Review hearing is the final decision on any complaint about a breach of rights.

Who can appeal a review?

Any party who is directly affected by a decision made at review can challenge the decision on appeal. This includes:

• You;
• Your employer (if the decision is about a work injury); and
• ACC

Who can attend the appeal?

• You
• Any other person entitled to appear
• Any representative of any person entitled to appear

Legal Aid

How to appeal a decision

• Complete a Notice of Appeal form, include
  • Which part of the Reviewer's decision you disagree with,
  • Why you think that the decision was wrong,
  • What kind of result you are looking for,
• Make enough copies of the Notice of Appeal so that you can send them to
  • The District Court
  • ACC
  • The Reviewer who made the decision that you are appealing
  • Anyone who represented you at the Review hearing (such as a lawyer)
  • Any other people involved in the Review hearing.
• Attach a copy of the Review decision to one of the Notices of Appeal
• Send the Review decision and Notice of Appeal to the District Court in Wellington:

• Send a copy of the Notice of Appeal to ACC:

When and where will the appeal be held?

The ACC Appeals District Court Registry will make a decision about where and when the appeal will have a hearing. Usually the appeal will be heard at the District Court that is closest to you.

The District Court will contact you with details about when and where your appeal will be heard.

What happens before the hearing?

Before the hearing the Court will ask everybody involved for a written submission. You will need to write why you think that the decision made at the Review hearing was wrong.

If you want to use new evidence, or if you want to have witnesses speak at the appeal, you will need permission from the Judge. You will need to write to the ACC District Court Registry before your hearing explaining what your witness will say, or what the evidence is. The Court will tell you who you will need to give copies of this letter to, and when you will need to do this by.

The Court will look at information that was used at the Review hearing as well as what is said at the appeal hearing in order to make the decision on your appeal.

What happens at the appeal hearing?

• The Judge will look at the review decision, the transcribed record of the hearing before the reviewer, and the evidence from the claim file. The Judge may also look at new items of evidence which the reviewer didn’t see.
• Any evidence that is to be given in person will be given.
• Everyone will get a chance to explain their point of view
• You (or the person representing you, such as a lawyer) will get to speak again once everyone else has explained their point of view. This is an opportunity to respond to what other parties have said.

What happens after the appeal hearing?

After the hearing the Judge will make a decision in writing. It may take a few weeks for the decision to be made.

What decisions can the District Court make?

The District Court can do any of the following

• Agree with the decision made at the review (called 'dismissing the appeal');
• Make changes to the review decision;
• Reject the review decision (called 'quashing the decision') and
  • Endorse ACC's decision; or
  • Require ACC to take specific actions; or
  • Require another review

If you disagree with the decision

If you, or anyone involved, disagrees with the District Court decision, then you may be able to appeal that decision to the High Court. You will need permission to appeal the decision, and the appeal must be because you disagree with a legal point in the decision.

Appeal to the High Court

Under section 162 of the Accident Compensation Act you can appeal a decision made by a District Court if you think that the Judge got the law wrong.

Apply to the District Court for leave to appeal