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Accident Compensation Cases

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

Judgment Text

Convenor D.J. Maze
An aided person (the “Applicant”) has applied for a review of the decision dated 19 June 2007 of the Legal Services Agency (the “Agency”). By that decision the Agency granted legal aid to the Applicant for an “ACC review hearing” at the guideline rate and declined to grant aid to cover a specialist medical report. 
Grounds of the Application 
A decision may be reviewed on the grounds that it is manifestly unreasonable or wrong in law. 
In this case, the Applicant submits that the Agency's decision is manifestly unreasonable. 
The Facts 
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. 
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. 
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. 
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. 
On 19 June 2007, the Agency granted legal aid for the ACC review hearing. It calculated the maximum grant as follows: 
$1,430.00 for fees to apply, prepare for and attend the ACC review. 
Actual hearing time @ GHR $130.00 (Forum 1 Level 3). 
$50.00 for office disbursements. 
The Agency declined to grant aid to cover Dr Glass' specialist report on the ground that it was prepared in August 2006. 
On 21 July 2007, having considered the further specialist report of Dr Barnes, the ACC accepted liability for the Applicant's claim. 
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. 
On 15 August 2007, the Applicant applied for a review of the Agency's decision. 
The Applicant's Submissions 
On behalf of the Applicant, the listed provider submits: 
The fact that the Applicant turned 16 years of age in the course of the ACC review is an exceptional circumstance. 
The Applicant was age-barred from applying for legal aid until he turned 16. 
This was an important case, not only for the Applicant but also for the public generally. It would have been grossly unfair and inequitable if the ACC's decision had stood unchallenged. 
In cases of this type, legal aid is always given to cover the cost of a specialist. 
The Agency can use the award of costs to offset the cost of legal aid. 
Aid should be granted to cover the cost of Dr Glass' report, and the legal costs incurred from the date of his 16th birthday. 
The Agency's Submissions 
The Agency submits: 
As no grant had been requested at Step 1 of the guidelines, the “initial grant was made at Step 2 at the standard guideline, which provides 11 hours for preparation” for an ACC review plus actual hearing time. Aid for an ACC review is granted at the forum category 1 rate and for a level 3 provider this hourly rate is $130.00. There was no justification to exceed the guideline rate. The listed provider “requested 40 hours at the rate of $140 per hour. He did not specify if or how much of this was for actual hearing time”
It is not its policy to approve aid for reports or other disbursements retrospectively. Dr Glass' report was prepared in August 2006, almost a year before the legal aid application was filed, and before the Applicant's 16th birthday. At that time, the Applicant was being supported solely by his parents. 
It has received only one invoice for 11 hours' preparation time. The listed provider has not yet billed for the actual hearing time. 
The complexity of the matter is not unusual for an ACC review. The listed provider did not request an amendment to the grant or a reconsideration. 
Legal aid was granted at standard rates for an eligible client. No penalty attached to the fact that the application was not filed on or immediately after the Applicant's 16th birthday. If, before the Applicant made his application on his own behalf, his parents had applied for aid and that application had met the eligibility requirements, it would have granted aid. No such application was made. 
The potential cost award was not taken into consideration when determining the amount of aid to be granted. 
The Issue 
The issue is whether the Agency's decision of 19 June 2007 to grant aid to cover 11 hours' work plus actual hearing time, and to refuse to grant aid to cover the cost of Dr Glass' specialist report, was 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 [2002] 17 PRNZ 433). 
In Legal Services Agency v A and O [2003] 17 PRNZ 443 John 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”
The submission that the Applicant was “age-barred” from applying for legal aid before he turned 16 is mistaken. Section 13 of the Legal Services Act 2000 (the “Act”) sets out particular provisions relating to minors and, up until the Applicant turned 16 in 2006, Regulation 9 of the Legal Services Regulations 2000 also applied. 
Given that an application for aid could have been made on the Applicant's behalf before the ACC review proceedings started, it was not unreasonable for the Agency to refuse to pay the cost of Dr Glass' specialist report. The report was obtained some ten months before any application for aid was made. The Agency's policy is that it requires a written request before any report is sought. 
The Panel accepts that the claim for medical mishap was properly brought and that the listed provider achieved a good outcome for the Applicant. However, the Applicant has not provided sufficient information either to the Panel or to the Agency to support the conclusion that a grant outside the standard rates was justified. The listed provider has provided copies of submissions and evidence but he has not explained how he has spent the 40 hours the Applicant has sought and why that amount was necessary. 
It remains open to the Applicant to provide that information for the Agency to consider as part of a request for reconsideration. If the Applicant does provide adequate justification, the Agency can — and should — revise the amount of aid granted. 
On the information it has, the Panel does not find the Agency's decision of 19 June 2007 to be manifestly unreasonable. 
For the reasons set out above, the Agency's decision of 19 June 2007 is confirmed. 

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