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Accident Compensation Cases

Legal Aid Review Panel Decision No 044/08T (LARP, 29/10/07)

Judgment Text

DECISION ON AN APPLICATION TO FILE A REVIEW OUT OF TIME 
Convenor D.J. Maze
Introduction 
1.
This application for review is made by an aided person (the “Applicant”) for the review of a decision dated 19 June 2007 by the Legal Services Agency (the “Agency”). In that decision the Agency granted legal aid for an “ACC review hearing” at the guideline rate and declined to grant aid to cover a specialist medical report. 
2.
The application for review was filed on 15 August 2007. 
3.
Section 55 of the Legal Services Act 2000 (the “Act”) requires an application for review to be made within 20 working days after the date on which notification of the relevant decision is given or within such further period as the Convenor on application allows. This section thus permits the Convenor a discretion that must be exercised considering the provisions of the Act including its purposes. 
4.
I consider at least the following four factors: 
(a)
the length of delay; 
(b)
the reasons for the delay; 
(c)
the merits of the substantive application; and 
(d)
whether the Agency, as the respondent to the application, is prejudiced by the delay in any way. 
The Length of Delay in Filing 
5.
The Legislature has permitted a period of 20 working days from notification of a decision within which an applicant may seek a review as of right, and that must be taken as Parliament's view of a reasonable period within which to file a review. A “working day” is defined not by the Act but by the Interpretation Act 1999 the provisions of which apply to the Act by virtue of section 4 of the Interpretation Act 1999. A “working day” is defined in section 29 of the Interpretation Act 1999 as excluding, among other days, each Saturday and Sunday. 
6.
The Applicant received the Agency's decision on 21 June 2007. Thus the time for applying as of right expired on 19 July 2007 and the application for review is 20 days out of time. I find the delay to be of moderate length. 
The Reason for the Delay 
7.
In explanation, the Applicant says that his eligibility for legal aid was only appreciated belatedly. His listed provider was focusing on achieving an adjournment of the ACC review hearing to allow the ACC to consider fully a specialist's report. An application for review dated 17 July 2007 met the statutory time frame but was rejected as it did not identify correctly the applicant for review. 
The Merits of the Substantive Application — the Facts 
8.
The Applicant is a 17 year old single male who suffers from achondroplasia. On 22 November 2004 he underwent an operation to stabilise his condition. During the operation a medical error occurred that resulted in partial paralysis. 
9.
On 13 June 2005 the Accident Corporation Commission (the “ACC”) declined the Applicant's claim for compensation. On 8 July 2005, the Applicant applied for a review of that decision. At some point, the Applicant's listed provider commissioned Dr Glass to prepare a specialist report. Dr Glass provided that report on 18 August 2006. 
10.
The ACC review commenced on 6 November 2006 and was adjourned partially heard until 21 June 2007. However, it was further adjourned for six weeks when a report by a Dr Barnes and commissioned for one of the specialist doctors involved in the proceedings became available. 
11.
On 14 June 2007 the Applicant applied for legal aid in relation to his medical misadventure claim. The application sought $5,600.00 to cover 40 hours' work the listed provider had completed since the Applicant's 16th birthday in April 2006 and $1,980.00 to cover Dr Glass' report. 
12.
On 19 June 2007, the Agency granted legal aid for the ACC review hearing. It calculated the maximum grant as follows: 
(a)
$1,430.00 for fees to apply, prepare for and attend the ACC review. 
(b)
Actual hearing time @ GHR $130.00 (Forum 1 Level 3). 
(c)
$50.00 for office disbursements. 
13.
The Agency declined to grant aid to cover Dr Glass' specialist report on the ground that it was prepared in August 2006. 
14.
On 21 July 2007, having considered the further specialist report of Dr Barnes, the ACC accepted liability for the Applicant's claim. 
15.
On 13 August 2007, the ACC reviewer declined jurisdiction to undertake the review on the ground that the ACC had accepted the claim for medical mishap. However, the reviewer awarded the Applicant costs of $1,465.00, including the statutory maximum of $800.00 for Dr Glass' specialist report. 
16.
Having read the papers, I am satisfied there is arguable merit in the application for review and subject to issues of prejudice it deserves consideration by the Panel. 
Prejudice to the Agency 
17.
The Agency has not raised any issue of prejudice and I find none has arisen. 
Decision 
18.
I do not find the Applicant's explanation for the delay particularly persuasive. However, I take into account that he originally filed an application for review within the statutory period but it was not accepted because it was not completed accurately. While the length of the delay is not insignificant, there may be some merit in the application and I exercise my discretion to extend the time of filing to 15 August 2007. 

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