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Additional Items for the IPRC Amendment Bill 2009

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25 May 2009

09/85472

C    Strengthening the disentitlement provision for claimants for whom it would be repugnant to justice to provide entitlements

Current situation

  1. Entitlements all ACC claimants may receive are set out in Schedule 1 of the IPRC Act.  Entitlements are treatment, rehabilitation (both social and vocational), weekly compensation, lump sum compensation for permanent impairment and entitlements arising from fatal injuries.

  2. Section 122 of the Act allows ACC to apply to the District Court to deny entitlements wholly or in part to previously imprisoned offenders, where it would be ‘repugnant to justice’ for the claimant to receive the entitlements.
  3. In determining whether to deny entitlements, under section 122(3) the District Court must use the following non-limiting, comprehensive criteria:
    • the harm caused by the claimant’s offence; and
    • the gravity of the offence; and
    • the claimant’s personal culpability for the offence; and
    • the extent of other penalties the claimant has already suffered because of the offence; and
    • the claimant’s personal circumstances; and
    • the nature of the entitlement; and
    • the strength of the claimant’s need for the entitlement; and
    • the resources the claimant has to meet that need.
  4. Eleven claimants have been disentitled under this provision since 1992.  These, in general, but not always, had a significant prison term of more than three years.  The extent of disentitlements ordered ranged from no entitlements to a reduction in weekly compensation and no independence allowance for a paraplegic. 

Proposal

  1. You have asked whether ACC can withhold entitlements until the verdict of a trial for any person who makes a claim is available. 

Option 1 Clear criteria for disentitlement without discretion

  1. This option has a clear set of criteria as to who should be disentitled.  The criteria do not allow ACC any discretion to decide whether or not a claimant who meets the criteria should be disentitled and to what extent.  Consequently, ACC must disentitle people who meet all these criteria.

  2. The recommended criteria are:
    • The person was imprisoned for this crime

    • The person was injured while committing the crime for which s/he was imprisoned.

    • The person has cover under ACC for this injury

    • The person committed a crime which is punishable with a sentence of a maximum of two years imprisonment.

  3. Criterion d could also set a length of time the person is actually imprisoned but the length of time might have to be less to have the same “repugnant to justice” effect because actual sentences are often not at the maximum allowed.
  4. The length of time of the imprisonment for this criterion is derived from an examination of the Crimes Act 1961 and the Land Transport Act 1998.  Most crimes such as serious assaults, manslaughter while driving a vehicle, murder and rape have a recommended sentence of well over two years.  Assault of a child or assault of a woman by a man has a recommended sentence of a maximum of two years.
  5. This option, if adopted, is quite rigorous in its application.  If you wanted to use this option because it is simpler to administer, its impact could be softened by only restricting the application of the disentitling provision solely to weekly compensation and lump sums, while continuing to allow treatment and social rehabilitation.

Option 2 Allows ACC to use discretion in deciding the degree of disentitlement

  1. This proposal retains the general thrust of the criteria in section 122(3) of the IPRC Act. However, ACC operational staff may not have the expertise to apply some of these criteria which fall within the particular expertise of District Court judges. It is proposed that ACC would use criteria similar to those below which would provide ACC with more discretion as to when and how much disentitlement would be applied. Possible criteria are:
    • The gravity of the offending
    • The nature of the entitlement
    • The extent to which the client was personally responsible for the offending and the consequent injury
    • The extent of the injury or other harm caused to others by the offending
    • The length of the client's sentence of imprisonment
    • The injury related needs (where assessed) of the client
    • The impact on the client's spouse, children or other dependants (if applicable).
  2. This option would retain the initial threshold already in the IPRC Act which provides the prerequisites of conviction and a sentence of imprisonment. The circumstances surrounding offending by one client may be clearly repugnant to justice while the decision in relation to the same offending by another client, after applying the criteria to the particular circumstances, may not be so clear cut.

Advantages and disadvantages of Options

Option Advantages Disadvantages
Option 1

The decision is easier to make for ACC

Reviews and appeals would be more difficult to win.

Cheaper option because of few reviews.

Very sweeping as it does not take into account the claimant’s circumstances or needs.

These criteria might not cover all claimants who have committed a crime that is “repugnant to justice”

Option 2

Allows ACC to make decisions on an individual basis taking into account a claimant’s situation and needs

Able to consider whether or not giving entitlements is “repugnant to justice”

Will result in more reviews and appeals of ACC’s decisions because the decisions are discretionary.

Likely to cost more because would be more reviews.

 

  1. Both options are likely to cost less because ACC does not need to apply to the Court in each instance to make a determination of “repugnant” to justice”.

  2. Many of the people who meet these criteria under either option will receive entitlements before they are convicted.  It will not be possible to recover these entitlements.

  3. It is unlikely that there will be many people who come under this provision.  Only about 0.25% of the population is in prison in any year.  Of these approximately 60% are Maori or Polynesian.  From previous cases of ‘repugnant to justice’ claims it is likely that a number will be those involved in car crashes.

  4. Disentitlement could also affect a prisoner’s rehabilitation into society with the resulting on going problems of reoffending.

  5. ACC prefers Option 2 as it enables all aspects of the case to be taken into consideration. The Department would prefer that the current provision remains because it removes a potentially contentious decision from ACC. Instead the Department recommends operational enhancements which would result in more cases being considered by the Courts as set out in our briefing (BP/09/84395),
  6. The Ministry of Justice supports the Department's view but if the provision is to be changed agrees with ACC that Option 2 is preferable.

Operational aspects

  1. ACC believes that its recent estimate of comparative costs gives a reasonably good indication of the costs savings likely in shifting the decision making authority on repugnancy to justice relating to disentitlement to ACC cover from the District Court to ACC.
  2. There has been one application to the District Court for a "repugnant to justice" ruling made in the last three years. On that application, total GST inclusive cost was $7,420.22. ACC administrative or salary costs would have been minimal.
  3. It is not possible to reliably estimate the administrative and salary costs of investigating and making a repugnancy to justice decision, in the event the decision making responsibility is returned to ACC. It is estimated that the cost would be less than $500 per claim. A better comparator may be the cost of the review process. While there is obviously no specific category for this issue in the contract between ACC and DRSL, the nearest equivalent is the category of reviews for which the standard fee is $1,441. It is unlikely that mediation would be seriously considered in this kind of review but if it was, the fee would be approximately $1,800.

Risks

  1. There is a risk that the cost of ACC making this decision and paying for reviews and appeals may be greater than estimated. ACC no longer has information relating to the period before 1992 when ACC was responsible for making the disentitlement decisions.
  2. There is a risk that families of claimants affected by this provision will be adversely affected if only treatment is provided, especially for claimants with serious injuries, such as paraplegia, which requires extensive social rehabilitation.
  3. There are likely to be costs transferred to the health and social welfare budgets for some of these claimants.
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