Challenging an ACC decision
The ACC scheme includes an opportunity for you to challenge ACC decisions by having them reviewed by someone who’s outside and independent of ACC. These reviews are carried out by either FairWay Resolution or the Independent Complaint and Review Authority (ICRA).
Types of decisions and issues that can be reviewed
What issues can I take to an independent review?
You can apply to ACC for an independent review of:
- any decision ACC has made about your claim (see below)
- any delay in processing your 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
The types of ACC decisions you can take to an independent review include:
- whether your injury is covered by ACC
- how your injury is classified (for example, whether it’s a work-related injury)
- whether ACC will provide you any entitlements (like weekly compensation), and which ones and to what level (like how much weekly compensation)
- whether you have to pay an ACC levy.
Your employer can also apply for a review of an ACC decision that your injury is work-related and suffered during your employment with them.
Note: ACC‘s decision stays in force during the review process, unless ACC agrees to changing it for your benefit.
Who does the independent review?
Your review will be done by either FairWay Resolution or the Independent Complaint and Review Authority (ICRA), which are both independent of ACC. Both of them hold review hearings around the country.
Applying for an independent review
Who can apply for an independent review?
Anyone who disagrees with a decision made by ACC is entitled to get an independent review of the decision. This includes if:
- ACC has refused you cover, or
- you think you’re entitled to more assistance from ACC than they’ve given you, or
- ACC has taken a long time to process your claim.
Employers can also get an independent review if they disagree with a levy that ACC has charged them, or if they disagree with an ACC decision that an injury or condition sufferend by one of their employees is is work-related.
How do I apply for an independent review?
You’ll need to apply in writing to ACC for the independent review (you don’t apply to the reviewers directly).
In your written application you should:
- say which decision you want reviewed
- set out the grounds for the review – that is, what you think was wrong with the decision
- say what decision you think should have been made instead.
How much time do I have if I want to apply for an independent review?
You have three months to apply to ACC for an independent review of one of their decisions.
If you apply late, ACC will accept your application and take the decision to an independent review only if there were special circumstances that prevented you meeting the time limit. For example:
- if you were so affected or traumatised by your injury that you couldn’t think about your right to a review
- if you made reasonable arrangements to have someone else apply for the review on your behalf, and they didn’t apply it on time
- if ACC didn’t tell you what you needed to do to apply for a review.
The lead-up to the review hearing
Once you’ve applied for a review, the reviewer organisation chooses a person to be a “Resolution Co-ordinator” for your case and appoints a person to be the reviewer. The reviewer organisation will be either FairWay Resolution or the Independent Complaint and Review Authority (ICRA).
The resolution co-ordinator contacts you to arrange the review, which may include setting a date for a case conference or a preliminary hearing.
The person appointed as the reviewer carries out the review and makes a decision. Their role is to be independent and impartial in deciding whether ACC‘s decision was correct or not.
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 other alternative ways of resolving disputes” 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.
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?
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?
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?
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 independent ACC review hearing (see the chapter “Legal Aid and other legal help”).
You can also bring witnesses and support people to the review hearing, but you must tell the reviewer organisation 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 allow 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?
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?
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.
Costs of the review
Can I recover the costs of going to a review?
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.