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Accident Compensation Cases

Legal Aid Review Panel Decision No 162/05 (LARP, 14/03/05)

Judgment Text

Convenor D.J. Maze
This is an application by an applicant for aid (the “Applicant”) for a review of the decision of the Legal Services Agency (the “Agency”) dated 29 November 2004 by which it declined to grant aid to the Applicant to research material to determine whether a new claim for ACC or a claim against ACC existed. 
Grounds of the Application 
A decision may be reviewed if it is either manifestly unreasonable or wrong in law. 
The Applicant submits that the decision was both manifestly unreasonable, and wrong in law. 
The Facts 
The Applicant was injured in an accident in 1995 and became paraplegic as a result. She was granted ACC. It is claimed that she was then virtually abandoned by ACC, or “fell through the cracks”
The Applicant alleges that because she was supplied with an unsuitable wheelchair she suffered further deterioration of her condition and required surgery as a result. That surgical procedure allegedly exacerbated her condition. 
The Applicant, through her solicitor, alleges there is an ongoing unsatisfactory relationship with ACC, the nature and extent of which cannot be determined without extensive research of a large file. On 26 August 2004, the Applicant sought a grant of legal aid so that her solicitor could investigate her existing claims for entitlements under ACC. 
On 1 September 2004, the Agency sought advice from the Applicant “as to what step of the process legal aid was required” in order to make a decision regarding her legal aid application. It appears that ACC's letter of 29 September 2004 was then faxed to the Agency on 21 October 2004 by the solicitor acting for the Applicant with a handwritten note on the Agency's original letter of 1 September 2004. The solicitor did not identify the specific matters about which proceedings might be commenced, but reiterated the need for significant research in support of the Applicant's claim that ACC had mishandled her claim to them “from the start”. There was no mention of what proceedings were contemplated, whether by way of a review, or by new proceedings. 
The Agency declined to grant aid by letter dated 2 November 2004, pursuant to s 9 (4)(d)(ii) of the Legal Services Act 2000 (“the Act”) stating that the Applicant's interest in the proceedings (whether financial or otherwise) in relation to likely cost did not justify a grant of aid. In particular it noted that the only reviewable decisions of ACC at that time were its declining to buy a new lazy boy chair, bar stools and dining suite. 
The Applicant sought reconsideration of that decision on 9 November 2004, on the grounds that the file was complex, there was the possibility of further disputes arising and the solicitor should be involved to prevent such disputes going on to review and appeal. Copies of correspondence to and from the ACC case manager were also submitted to the Agency, evidently to show that the Corporation was dealing with the concerns the solicitor had raised to date. The Panel notes that there were numerous issues being addressed, and that they covered many aspects of the Applicant's needs and support. 
No new issues or possible proceedings were identified in the reconsideration application, and the Agency confirmed its original decision on 29 November 2004 on the basis it had no new information to show that the Agency's decision was unreasonable or unlawful. In addition to relying on s 9(4)(d)(ii) of the Act, the Agency also declined aid on the basis that it could not determine whether the Applicant had reasonable grounds for taking the matter to an ACC review (s 9(3)(a) of the Act) as the Applicant had not provided any argument on this. While the Agency recognised that aid was available for resolving disputes by means other than by legal proceedings, it stated that it still needed to have regard to s 9 of the Act. This review followed. 
The Applicant's Submissions 
The Applicant submits: 
the applicant has lost the use of the top part of her body through an operation insisted upon by ACC; 
the refusal to grant aid means that there is no funding available to review the files and prevent future disputes, or to determine whether she has received all her proper entitlements, and 
subsequently a further ground of review was submitted to the Panel on 6 February 2005, namely that the Agency was wrong in law, and that the Applicant intended to sue ACC for misfeasance in a public office. (The Panel notes that the Agency may not have had the opportunity to consider that submission when formulating its response). 
The Agency's Submissions 
The Agency submits: 
the Agency deferred its initial decision whether or not to grant aid because the Agency did not have sufficient information upon which to determine the purpose of the application and the prospects of success; 
despite further information being provided to the Agency on 21 October 2004, there were few issues identified by the applicant's solicitor that were able to be reviewed by way of an ACC review hearing; 
on reconsideration, the Agency's original decision was upheld on the basis that: 
no new information was supplied in support of the reconsideration application to show the original decision was unreasonable or unlawful; 
the information supplied showed that ACC was attempting to resolve the issues raised by the Applicant, and “was there any need to obtain the services of a lawyer?”
there was no submissions provided to identify the basis of the Applicant's dispute with ACC and whether that would be resolved by an ACC review hearing; and 
in the Agency's view the dispute was not one that fell within the meaning of “legal services” as defined in s 4 of the Act. 
The Issues 
The issue before the Panel is whether the decision to refuse to grant legal aid to the applicant wrong in law or manifestly unreasonable. 
The Law 
A decision is “manifestly unreasonable” if it is shown “clearly and unmistakably” that the Agency's decision “went beyond what was reasonable or was irrational or logically flawed” (Legal Services Agency v Fainu 19/11/02 Randerson J HC Auckland AP68/02). 
In Legal Services Agency v A and O (22/5/03 High Court Christchurch CIV 2003/409/597 & 598) J Hansen J said at paragraph 11 that manifestly unreasonable meant “something different from what is ‘wrong in law’, and would be made out “where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed”. His Honour also said that “manifestly unreasonable” required “not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for”. His Honour added that, “the determination of what is ‘manifestly unreasonable’ is to be made objectively by the members of LARP, applying their judgment to the matter in accordance with the principles stated”, and that it was “not for LARP to substitute its view of what the decision should have been for that of the Agency”
A decision may be wrong in law for a variety of reasons. It may be wrong in law, for example, if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle. It may be wrong in law if a decision maker has failed to take into account some relevant matter, or takes into account some irrelevant matter, or if the decision depends on findings which are unsupported by the evidence (Legal Services Agency v Fainu (supra)). 
The Panel finds that the material submitted to the Agency by the Applicant's solicitor was not particularly helpful in isolating specific issues and detailing the matters aid was being sought for. The Applicant's solicitor must bear the responsibility for that. 
The Agency, however, appears to have focused simply on whether the matters it identified as being in issue were capable of being taken on review to the ACC Review Panel. It submitted that ACC was attempting to resolve the issues, but appears to have overlooked the fact that those issues were the issues that the solicitor had raised with ACC. It appears from the correspondence before the Panel that the Applicant was clearly receiving “legal services” from her solicitor. 
The Panel also notes that the Agency appears to be submitting that its reconsideration is limited to a question of whether or not its original decision was wrong in law or unreasonable. With respect to the Agency, that would appear to fetter its role in undertaking reconsideration. Section 29 of the Act does not import such a test, and if that was the main reason upon which the Agency relied in coming to its decision on reconsideration, that would be a decision made on an inaccurate interpretation of the Act, and would in itself be wrong in law. 
The Applicant's final submission, that she wishes to sue ACC for misfeasance, raises an issue entirely different from any cause of action the Agency appears to have considered in its determinations. The Panel has already noted that the Agency may not have had the opportunity to consider this submission fully when formulating its submissions in response to the Application for Review to this Panel, although it has acknowledged receiving letters of 9 December 2004 and 6 January 2005 from LARP. In this respect, the Panel notes that the Agency does conclude in its submissions to LARP that “again there is no relevant information” to justify a grant of legal aid for an ACC review hearing “or any other Court proceedings.” 
In those circumstances, the Panel declines to determine the review application as it feels it is appropriate that the Agency be given an opportunity to consider this specific submission more fully. Accordingly, the Panel finds that the Agency should reconsider its decision to decline to grant aid. 
For the reasons set out above, the Agency is directed to reconsider the application. Pursuant to s 58(3) of the Act, the Agency must take into account the following matters: 
the appropriate application of s 29 of the Act; 
the services that were provided by the solicitor to the Applicant; and the clear indication that litigation against ACC (misfeasance) is now contemplated. The Agency may require clear and concise information from the Applicant to assist it in its reconsideration, and the Agency should seek that from the Applicant and her solicitor if it deems it necessary to do so. 

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