Challenging an ACC decision

 

If you are unhappy with a decision made by the Accident Compensation Corporation (ACC), you can challenge the decision through a review and appeal process. The different stages of the process are:

  • an administrative review – that is, an internal review by ACC
  • mediation and facilitation
  • an external review (by FairWay Resolution)
  • appeals to the District Court and higher courts.

This process is discussed in more detail below.

Administrative review by ACC

Accident Compensation Act 2001, ss 133-164

What is an administrative review?

An administrative review is an internal review where ACC reconsiders its own decision. In an administrative review, ACC will:

  • look again at its decision and the reasons for it
  • hear from you about why you are unhappy with the decision
  • consider any new information that you may have
  • consider whether it should overturn its original decision or defend the decision at an external review hearing.

This review is simply an examination of the available information. It does not involve a meeting or hearing.

When will an administrative review happen?

An administrative review will happen:

  • if you ask ACC to reconsider its decision internally, or
  • if you apply for an external review (see “External review” in this section). In this situation, ACC will first carry out its own internal administrative review of the case.

Who carries out the administrative review?

The administrative review is carried out by the same staff member who made the original decision, but it will then be checked by senior staff at that ACC branch.

Mediation and facilitation

What is mediation?

Mediation is a way of resolving a dispute. A neutral mediator helps the parties to discuss the problem, identify the issues, and try to come up with an agreed settlement. The mediator facilitates the discussion, but they don’t decide what will happen. The parties decide together, unless they decide to ask the mediator to make a decision that they will both accept.

When is mediation available?

Mediation is available:

  • before any application for an external review is made (see “External review” in this section). In this case mediation is arranged by ACC.
  • after an application for an external review is made. In this case mediation is arranged by the external reviewers FairWay Resolution (see “External review / The reviewer” in this section).

Mediation is only appropriate for cases where there is some scope for negotiation between the two sides, such as where ACC has some discretion under the Accident Compensation Act. Mediation is not appropriate where the Act or regulations set out detailed rules that constrain ACC, such as whether the claimant has cover or not. Any agreement reached at mediation must be consistent with the Act.

Accident Compensation Act 2001, s 299

Note: Mediation on ACC issues is voluntary. It can only happen if both parties are willing.

What is facilitation?

Facilitation is a process for trying to work out a way forward in a situation where the parties have different ideas about what the issues are and so have difficulty understanding each other. While mediation is appropriate in a situation where both sides agree on the nature of the dispute, facilitation is about identifying the issues in dispute, so that the parties can then move toward resolving them.

External review

The ACC scheme includes an opportunity for you to challenge ACC decisions by having them reviewed by an external reviewer, a reviewer that is independent of ACC. These reviews are carried out by FairWay Resolution.

What can be reviewed

What matters can be reviewed externally?

Accident Compensation Act 2001, s 134

You can apply to ACC for an external review of:

  • any ACC decision on a claim
  • any delay (in processing a claim) that you believe is unreasonable
  • any ACC decision in response to a complaint by you under the Code of ACC Claimants’ Rights.

ACC decisions that can be reviewed

Accident Compensation Act 2001, s 6

The types of ACC decisions that can be reviewed include:

  • whether a claimant’s injury is covered
  • how a claimant’s injury is classified (for example, whether it is a work-related injury)
  • whether ACC will provide any entitlements to a claimant
  • which entitlements ACC will provide to a claimant
  • the level of entitlements ACC will provide
  • whether a person has to pay a levy.

An employer may also apply to ACC for a review of an ACC decision that a claimant’s injury is a work-related personal injury suffered during employment with that employer.

Note: ACC‘s decision remains in force during the review process, unless the parties agree to vary it for the claimant’s benefit.

Accident Compensation Act 2001, s 133

The reviewer

Who carries out the external review?

External reviews are carried out by FairWay Resolution. FairWay Resolution is an independent Crown Company. It is entirely independent of ACC.

FairWay Resolution has offices in Auckland, Wellington and Christchurch. It also holds hearings in 25 other locations around the country.

Applying for an external review

Who can apply for an external review?

Anyone who disagrees with a decision made by ACC is entitled to seek an external review of that decision. This includes:

  • an injured person for whom ACC has refused cover or whose claim has been delayed
  • a claimant who feels they are entitled to more assistance from ACC than has been granted
  • an employer challenging that a claimant’s injury is work related
  • an employer who disagrees with a levy ACC has charged them.

How do I apply for an external review?

Accident Compensation Act 2001, s 135

An application for an external review must be filed with ACC (rather than to FairWay Resolution directly). It must be in writing. If possible, it should be on ACC‘s Application for Review form. The written application should:

  • identify the decision or decisions to be reviewed
  • state the grounds for the review (what was wrong with the decision)
  • if known, state the relief sought (the decision that the claimant would prefer).

How much time do I have to apply for an external review?

Accident Compensation Act 2001, s 135

You must lodge your application for a review with ACC within three months of the date of ACC‘s decision.

ACC will accept late applications only if there are extenuating circumstances that affected your ability to meet the time limit. For example:

  • if you were so affected or traumatised by the injury that you were unable to consider your right to a review
  • if you made reasonable arrangements to have your application made by an agent on your behalf, and the agent unreasonably failed to apply in time
  • if ACC failed to notify you about what you needed to do to apply for a review.

The lead-up to the review hearing

Once an application for a review has been made, FairWay Resolution chooses a resolution co-ordinator for the case and appoints a reviewer.

Resolution co-ordinator

The resolution co-ordinator is the claimant’s contact person at FairWay Resolution for the review process.

Reviewer

Accident Compensation Act 2001, ss 137-139, 145

The reviewer is the person appointed by FairWay Resolution to conduct the review and make a decision. Their role is to be independent and impartial in deciding whether ACC‘s decision was correct or not.

The resolution co-ordinator contacts you to arrange the review, which may include setting a date for a case conference or a preliminary hearing.

Case conference

A case conference is used to try to resolve any procedural issues before the review hearing. The reviewer will decide whether a case conference is needed.

If the reviewer decides to have a case conference, they will contact the parties, usually by phone, to discuss things such as:

  • whether everyone understands the issues
  • whether everyone is ready to go ahead
  • the hearing date and venue
  • whether anyone has any special needs in relation to the hearing.

The reviewer may also discuss with the parties whether mediation or facilitation may be the best way to resolve the dispute (see “Mediation and facilitation” above in this section), or whether the parties would prefer an “on the papers” decision. An “on the papers” decision means a decision based on the documents that the parties provide (rather than a decision based on evidence presented by people speaking at a hearing).

After the conference, the reviewer will send the parties written confirmation of any agreements reached and any decisions that the reviewer has made about procedural issues.

If the reviewer decides a case conference is not necessary, they will contact the parties to arrange a date and place for the hearing. They may also discuss whether mediation or facilitation may be the best way to resolve the dispute (see “Mediation and facilitation” above in this section), whether the parties would prefer an “on the papers” decision, and whether anyone has any special needs in relation to the hearing.

Preliminary hearing

In some cases, the reviewer may decide to hold a preliminary hearing. This usually happens when there is doubt about whether the review application is valid; for example, where it appears that there might not have been an ACC decision that can be reviewed.

The preliminary hearing is usually focused only on settling the preliminary issue, such as checking whether the application is valid. A preliminary hearing can be held by phone (through teleconferencing) or “on the papers”.

The review hearing

Where will the review hearing be held?

Accident Compensation Act 2001, s 141

The review hearing will be held at a place agreed to by the parties or (if the parties can’t agree) at a place decided by the reviewer. All parties will be told the time and place of the hearing at least seven days before the date of the hearing.

When will the review hearing be held?

Accident Compensation Act 2001, s 146

Within three months after you apply for the review, ACC must have set a date for the review hearing. If after three months they still haven’t set a hearing date, you’re treated as having automatically won your case (unless you contributed to the delay).

Who is entitled to be present at a review hearing?

Accident Compensation Act 2001, s 142

The applicant and one or more representatives of the ACC are entitled to be present at a review hearing. If the review is about a decision to accept or decline cover for a work-related personal injury, the claimant’s employer may also be present.

You can choose to represent yourself, or you can be represented by someone else, for example, an advocate or a lawyer.

Note: Legal aid may be available for legal representation at an external ACC review hearing (see the chapter “Legal aid”).

You can also bring witnesses and support people to the review hearing, but you must advise FairWay Resolution first.

Members of the public and the media are not allowed to attend the review hearing.

What happens at a review hearing?

At the review hearing, all parties and their representatives are given a chance to speak and to present evidence that supports their case. The reviewer may admit any relevant evidence from a person entitled to be present, whether or not it would be admissible in court.

If you are the applicant, you may be asked questions by ACC or by any other party. You can also ask questions of other parties who give evidence. The reviewer can also ask questions of either party and of their witnesses and can request further information. The reviewer must make a record of the evidence, usually by an audio recording of the hearing, and must keep the record for at least two years.

The reviewer’s decision

How does the reviewer make a decision?

Accident Compensation Act 2001, s 145

The reviewer will hear the evidence and can ask anyone questions during the hearing. Before making a decision at the review hearing, the reviewer must:

  • put aside ACC‘s decision and look at the issues on the basis of the information provided at the review
  • put aside ACC‘s policies and procedures and make a decision based on what is the best solution under the ACC laws.

What decisions can the reviewer make?

Accident Compensation Act 2001, s 145

The reviewer can decide to:

  • dismiss the application for review and stick to ACC‘s decision
  • make changes to ACC‘s decision
  • cancel ACC‘s decision and either:
    • substitute the reviewer’s own decision, or
    • require ACC to make a new decision in line with the reviewer’s instructions
  • require ACC to make a decision within a specific time frame (specified by the reviewer), if ACC has not made its decision in a timely manner
  • make the decision for ACC, if it has not made a decision in a timely manner.

    Note: If a review hearing is held, a review decision must be made within 28 days after the hearing. As soon as possible after making the decision, the reviewer must give a copy of the decision to the applicant, ACC, and any others who were at the hearing. The reviewer’s decision is binding on all parties.

Accident Compensation Act 2001, s 144

Costs of the review

Can I recover the costs of going to a review?

Accident Compensation Act 2001, s 148

ACC is responsible for costs relating to reviews. When the reviewer provides a review decision, the reviewer:

  • must award costs and expenses to the you, the applicant, when the matter is resolved in your favour
  • has discretion to award other costs and expenses to any other person, when the matter is resolved in your favour
  • has discretion to award you costs and expenses even if the matter is not resolved in your favour, if the reviewer thinks that the applicant acted reasonably in asking for the review.

If ACC revises its decision in your favour before the hearing, ACC must award you costs and expenses. In this situation, ACC should award the costs and expenses that would have been awarded by a reviewer had the review proceeded. This applies whether or not a reviewer is appointed and whether or not a hearing has been scheduled.

Appeal to District Court and higher courts

Accident Compensation Act 2001, ss 149-161

An external review decision can be appealed to the District Court. This appeal is a rehearing, which means that the court will just look at the evidence that was given at the review (although the court does have a discretionary power to receive further evidence). (A rehearing is different from a “de novo” hearing, which is where the parties present their cases and their evidence as if for the first time.)

What is the time limit for making an appeal?

Accident Compensation Act 2001, s 151

An appeal against a review decision must be made within 28 days after receiving the review decision, unless the court gives leave for a late appeal.

Who may appear at the court hearing?

Accident Compensation Act 2001, s 155

The person making the appeal and any other person who had a right to appear at the review may appear at the appeal in the District Court. They may come in person or appoint a representative. The representative need not be a lawyer.

Note: Legal aid may be available for an appeal of a review decision to the District Court (see the chapter “Legal aid”).

What decisions can the District Court make?

Accident Compensation Act 2001, s 161

The District Court can:

  • dismiss the appeal
  • make changes to the review decision
  • cancel the review decision, and
    • endorse ACC‘s decision
    • require ACC to take certain action
    • require another review to be held.

Appeal from District Court to High Court

Accident Compensation Act 2001, s 162

The District Court’s decision can be appealed to the High Court, but only on a question of law.

If you want to appeal, you must get permission to appeal from the District Court. You have 21 days from the date of the District Court decision to apply for that permission. If the District Court refuses permission, then you may apply to the High Court for permission within 21 days of that refusal. If permission is given, you have 21 days to file the appeal in the High Court.

Appeal from High Court to Court of Appeal

Accident Compensation Act 2001, s 163

There is a final right of appeal to the Court of Appeal on a question of law. Again, there is a two-step process of first obtaining permission from the High Court, or from the Court of Appeal if the High Court refuses. Generally, no appeal may be brought after 28 days from the date of the High Court decision unless special leave is given by the High Court or Court of Appeal.

Complaining to the Ombudsmen

What kinds of ACC decisions can I take to the Ombudsmen?

Ombudsmen Act 1975, s 13

The Ombudsmen investigate complaints from members of the public about the decisions or conduct of government bodies and officials and other public bodies like the Accident Compensation Corporation.

The Ombudsmen can’t usually investigate ACC‘s decisions about claims, such as whether to accept a claim, or whether to provide treatment or pay compensation. In these situations, you can have an independent review and, if necessary, appeal to the District Court.

However, the Ombudsmen can investigate other types of decisions and actions by ACC, such as:

  • delays in responding to your letters
  • actions taken by ACC in getting you to repay a debt to them.

(For how to complain to the Ombudsmen, see “Challenging decisions and conduct of government agencies” in the chapter “Dealing with government agencies”.)

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