ACC required to contribute towards client’s travel costs to attend hearing

ACC client had difficulties with Individual Rehabilitation Plan and case manager—weekly earnings stopped—client sought review and later appealed decision to District Court but before hearing took place client moved to another town and had new IRP and case manager, and the earnings were reinstated—the client chose to continue with appeal in District Court but the appeal was unsuccessful—ACC refused to reimburse client for travel expenses but Ombudsman held this decision unreasonable

A client of the Accident Compensation Corporation (ACC) was receiving cover for a back injury. However, he was having serious differences of opinion with his case manager over the completion of his IRP, with the case manager insisting he continue a strenuous gym programme that the client found seriously increased the pain he experienced. Eventually, the client’s weekly earnings were stopped. The client lodged an application for review of this decision in which he sought a change of case manager and IRP plus compensation. While ACC considered the review, the client was unable to pay his rent and decided to move to another town several hours away where he entered into a new IRP with a new case manager. ACC later advised the client that it did not have jurisdiction to hear the review. As a result the client appealed to the District Court.

Given that the client was now living elsewhere, ACC said he was offered the option of having the hearing transferred to that town (although the client disputed this). In any event, the hearing was held in the District Court of the town where the client initially lived. Although the appeal was unsuccessful, the Judge who heard the case stated in his decision that he considered it would be appropriate for ACC ‘to make a contribution towards the appellant’s travel expenses’ to attend the hearing. However, the Judge acknowledged he had no power to order this.

The client then requested reimbursement of his travel costs from ACC. This was refused. The matter was then referred to the Minister for ACC who advised that she did not consider it appropriate to pay for travel costs when they could have been avoided in this instance by the client choosing to have the hearing in his new location. A complaint was made to the Ombudsman who first considered jurisdictional issue because an Ombudsman has no authority to investigate decisions made by Ministers of the Crown.[1]

The Ombudsman considered the contents of the letter sent to the complainant from the Minister. He noted that the Minister had not appeared to make a decision on the original request for reimbursement of transport costs. Rather, the letter merely conveyed the information she had received from ACC. Therefore the Ombudsman was satisfied that the decision on the transport costs had actually been made by ACC. This was a decision which the Ombudsman was able to investigate under the Ombudsmen Act.

ACC advised the Ombudsman that its decision not to contribute to the transport costs was based on the following:

• The client chose to appeal the review decision despite the review officer having concluded that the issues taken to review did not confer review rights.

• The outcome the client was seeking from the review would have been to have his entitlements reinstated, his IRP modified and/or a change of case manager. By the time the complainant attended the hearing he had already obtained all these outcomes as a result of his shift to his new town of residence and it was therefore not necessary for him to pursue the appeal in order to achieve these remedies.

• The client had the option of choosing to have the hearing transferred which ACC would not have opposed.

• The client was told at the review hearing that the District Court had no jurisdiction, and this decision was upheld in the Court.

After considering ACC’s comments the Ombudsman asked the client to explain why he considered it necessary to proceed with the appeal when it would appear that the issues raised at the review had, in effect, been resolved. In response, the complainant said that while he had achieved the desired outcome in respect of his entitlements, IRP and new case manager, this did not address the issue of the case manager cancelling the entitlements in the first place. It was as a result of this decision, coupled with the acrimonious relationship he had with his case manager, that the client said his family suffered financial pressure and was forced to relocate. The client also disputed ACC’s submission that it would not have opposed a request for the hearing to be transferred. He referred the Ombudsman to the Judge’s comments that:

• The matter had come to Court as a result of a serious lack of communication between the client and his case manager which could have been resolved had his complaints been noted at an earlier date.

• The client had not been able to afford legal representation. As a result the client had found himself in an argument with ACC with which he could not compete. In these circumstances the Judge was of the view that ACC staff could have taken a more sympathetic approach to the client’s claim.

• The friction that existed between the parties only exacerbated the problem and resulted in the client deciding to proceed with this appeal so as to air his complaint.

In terms of the monetary award the client was hoping would be made for his overall loss, the Ombudsman explained that, as the complaint under investigation concerned ACC’s decision not to reimburse the client’s travel costs, his opinion and any recommendation would be confined solely to that complaint. He advised the client that an Ombudsman does not have the authority to order ACC or any agency to pay compensation. Only a Court has that power.

The Ombudsman found the Judge’s comments particularly relevant noting that the Judge was in the best position to assess the relationship between the parties. It was clear to the Ombudsman that the Judge considered a breakdown in communication between the parties had created a climate of mistrust and suspicion, which resulted in the client believing he had no option but to pursue legal remedies. Further, while the Judge did not have jurisdiction to order ACC to make a contribution towards the client’s travel costs, he considered that it would be appropriate for ACC to do so. As a result, the Ombudsman formed the view that ACC’s decision not to make a contribution to the complainant’s travel costs was unreasonable.

ACC agreed to reimburse the complainant.

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.