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Accident Compensation Cases

Herrick v Accident Compensation Corporation (DC, 09/06/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the respondent's letter dated 12 November 1998 constituted a “decision” which was capable of review. 
The background giving rise to the appeal is that the appellant suffered personal injury by accident in a motor vehicle accident in October 1992. She was granted cover and as a result received various entitlements, including childcare and home help. 
Prior to December 1996 the appellant received childcare payments of $120 per week and home help payments of $260 per week. An investigation by the respondent found that the appellant had been providing false information regarding the childcare and home help payments which she had received. The respondent laid charges under section 229A of the Crimes Act to which the appellant entered a plea of guilty. When the respondent became aware of the irregularities, it notified the appellant on 4 December 1996 that further payments of childcare and home help were to cease. The appellant did not dispute that decision. 
On 13 January 1998 the respondent reinstated payments of home help based on an assessment of twelve hours per week. On 21 May 1998, through her Solicitor, the appellant requested back pay of her childcare and home help entitlements for the period between the cessation on 4 December 1996 and 13 January 1998. The respondent conceded that in spite of the criminal charges the appellant continued to have an ongoing need for assistance from December 1996. 
However, the respondent concluded that as it had no evidence of the amount of childcare or home help assistance received in the interim period as the appellant was unable to provide receipts. On that basis it considered that its “wrongful action” policy should apply and it offered $2,000 to the appellant to satisfy her for her loss of opportunity to claim assistance. That offer was included in a letter dated 28 August 1998 but on 10 September 1998 the appellant's Solicitor requested further entitlements for the whole of the period in question. The appellant's Solicitor submitted that the respondent could make a decision under section 67(1). 
On 22 September 1998 the respondent notified the appellant's Solicitor that it was unable to make a decision under section 67(1) as childcare and home help payments could only be made on production of the actual receipts for the service provided. However, on 12 November 1998, using its powers under section 156, the respondent notified the appellant that it was prepared to pay the sum of $6,240 based on an entitlement of twelve hours per week of childcare and home help assistance over the relevant period. 
In that letter the respondent confirmed that the decision to cease payments had been made in error and as a result of its “wrongful action” it proposed to make the offer of settlement of $6,240 which would have been the full entitlement had receipts been produced. On 9 February 1999 the appellant applied for a review of that decision. 
The Review Officer noted that decisions under section 156 were made in the exercise of the discretionary powers provided to the respondent. He concluded that the letter of 12 November 1998 was simply an offer of settlement under section 156. On the basis of the Court's decision in Arts (75/96) the Review Officer concluded that an offer under section 156 was not “a decision” in which the Court can be involved. 
Ms Drayton-Glesti submitted that the respondent could have used the discretion in section 26A to override the Regulations and meet the expenses not expressly covered by the Regulations provided they met the objects of section 26. She submitted further that the appellant's husband and children had had to carry out the work which would otherwise have been provided by a home help provider if payments been made. She said that this placed an unnecessary strain on the family which should be compensated. She submitted that in relation to Mollgaad v ARCIC (AP 88/98 Wellington High Court) the objectives of the legislation could be achieved by applying a liberal construction to regulation 17(b) of the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 by providing assistance without the need for provision of receipts. 
Ms Scott submitted that the respondent had exercised a discretion and that the issue involving the error could not be corrected by a decision under section 67A. In support of that submission Ms Scott referred to the decision in Taylor (212/98) in which His Honour Judge Beattie said: 
“I find that it is not open to a claimant to require the Corporation to invoke s 67A and contend that if it elects not to do so, that election not to do so is in itself a decision capable of review. The provisions of s 67A are clear that it is only an amended decision or a substituted decision that constitutes a fresh decision and which is capable of being the subject of a review. 
If the Corporation of its own initiative elects to invoke s 67A, that is as it should be, but I find that a claimant cannot demand that the Corporation reconsider under section 67A and that if it elects not to do so that refusal is somehow a decision. Such is not the case. ”
Ms Scott submitted that on that basis the appellant could not require the respondent to revise the decision cancelling entitlements from 4 December 1996. 
I agree with Ms Scott's submissions. It is quite clear from the evidence that when it realised the error it had made the respondent conceded that there was an error which it attempted to rectify by payment of an amount which would have been equal to the payments for home help had receipts been available. 
I do not consider that the respondent would be justified in increasing that offer by taking into account the possible hardship incurred by members of the family in providing help which would otherwise have been provided had the entitlements not ceased. I do not consider that the offer made by the respondent amounted to a “retrospective assessment” as submitted by Ms Drayton-Glesti but was merely an offer based on the actual, factual situation in order to settle a claim which could not otherwise have been satisfied without the provision of receipts for the service provided. 
I consider that the respondent made a very fair offer which did not amount to a decision capable of review but constituted an offer which I would have thought the appellant would be anxious to accept. 
The appeal is dismissed. 

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