A 17 month delay by ACC in deciding whether to prosecute claimant for fraud but this delay due to 16 month delay by Crown Solicitor in providing ACC with written legal opinion — Ombudsman unable to investigate actions of Crown Solicitor but could consider how ACC dealt with the delay—three emails by ACC sent in 13 month period, then a formal request sent in writing for legal opinion—no agreed timeframes for when advice could be expected and Ombudsman of view that it was unreasonable for ACC to wait 14 months before formally raising concerns about the delay with the Crown Solicitor—ACC apologised to complainant and agreement reached between ACC and Crown Solicitor that legal opinions will be provided within 21 days of receipt of request
In October 2001 the Accident Compensation Corporation (ACC) allegedly sent a letter to a long term claimant advising that an investigation into his weekly compensation had been completed and, as a result, ACC had referred his file to the Crown Solicitor’s office with a recommendation that he be prosecuted for fraud. The letter also stated that ‘in the unlikely event that the Crown Solicitor decides not to proceed with prosecution [the claimant] will be advised of this decision’.
In January 2003 the claimant received a copy of his complete file which contained a copy of this letter. The claimant advised that this was the first time he had seen the letter as it had originally been sent to an address that he left 5 years ago. In any event, he had not received any further advice as to whether or not ACC intended to proceed with the prosecution. The claimant then wrote to the Crown Solicitor and ACC for confirmation as to the status of this matter. ACC responded in late January 2003 advising that the matter was still under consideration and he could expect to hear from the Crown Solicitor within 30 days. However by March 2003 he had still not received confirmation as to whether the prosecution was to proceed and he wrote to the Ombudsman seeking his assistance.
The Ombudsman wrote to ACC advising that he had received the complaint and asking for a report confirming whether or not ACC intended to prosecute the claimant and why it had failed to keep the claimant informed of what was happening. ACC responded that a decision had been made not to pursue court proceedings against the claimant. It acknowledged that there had been a delay of 17 months in reaching this decision. ACC advised it had a policy that, before a decision could be formally made as to whether to proceed with a prosecution, it must have a written legal opinion on the case. While verbal advice had been given to ACC soon after it had referred the case to the Crown Solicitor in 2001, ACC advised the Ombudsman that confirmation of that advice in writing was not received until 16 months later, hence the delay in notifying the claimant.
The Ombudsman advised the claimant of ACC’s comments. He explained that, as an Ombudsman, he was not authorised to investigate the actions of the Crown Solicitor in relation to the delay. However, he was able to consider how ACC dealt with the delay. The Ombudsman wrote to ACC asking that it confirm what steps its staff took to ensure that the written legal opinion from the Crown Solicitor was received in a timely manner. The Ombudsman also inquired about the timeframes that had been agreed for receiving an opinion such as that requested in this case, and requested confirmation as to whether the delay had any effect on the management of the claimant’s case.
ACC advised that e-mail enquiries about the delay were made with the Crown Solicitor in July and November of 2002. On each occasion the ACC case officer was assured that the written opinion was forthcoming. However, when no advice had been received, a formal request in writing was sent in December 2002. ACC also advised that it did not have clearly agreed timeframes with the Crown Solicitor. However, it said there was an expectation that written legal opinions would be forwarded ‘within a timely manner’, although ACC accepted that the legal opinion had not been provided within such a timely manner in this case. Finally, ACC confirmed that the claimant had applied for an independence allowance but the processing of this request was a totally separate issue and was not related to that under consideration by the Crown Solicitor.
The Ombudsman then considered the relevant documents from the claimant’s ACC file. He noted there were two entries implying that the processing of the claimant’s independence allowance claim had been delayed because his original file was being considered for prosecution. The Ombudsman therefore arranged for a meeting with ACC staff to discuss this matter further. At that meeting, ACC staff confirmed that it had not been able to proceed with the claim because certain documents needed were on the original file with the Crown Solicitor, and ACC had failed to keep a copy of the file when it had been referred for prosecution. ACC explained that this was an administrative error.
The Ombudsman considered that it was unreasonable for ACC to have waited 14 months before raising concerns about the delay formally in writing with the Crown Solicitor. It also appeared to the Ombudsman that more specific timeframes for the provision of legal opinions would have assisted ACC in obtaining the legal opinion without delay. Further, the Ombudsman was of the view that the fact that the file was not available in order to complete processing of the claimant’s application for an independence allowance unreasonably affected the management of his claim. The complaint was sustained.
Following receipt of the Ombudsman’s view, ACC agreed to apologise to the claimant for the delay in following up the matter formally in writing with the Crown Solicitor. It also agreed to seek a written agreement as to the timeframe within which legal opinions should be provided by the Crown Solicitor. ACC subsequently advised that a written agreement had been reached with the Crown Solicitor to the effect that a legal opinion is now expected to be provided within 21 days of receipt of a request from ACC.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.