Ministry of Social Development's processes for considering claims of abuse in care

Excerpt from executive summary

The Ministry of Social Development (the Ministry) administers a scheme to assess claims from people who experienced abuse or neglect while in the care, custody or guardianship of Child, Youth and Family or its predecessor agencies before 1 April 2017.[1] The scheme was first established in 2007 and was substantially revised in 2018.

Cooper Legal represents a large number of claimants who have sought redress through this scheme. In 2020 Cooper Legal complained to me that the historic claims process as revised in 2018 was unreasonable and unjust in several respects. The complaint is wide ranging, involving criticisms of the processes for considering claims and the amounts payable under it. 

Since the complaint was received in my office the Royal Commission of Inquiry into Historic Abuse in Care (the Commission) has issued its final report. Of particular relevance are the Commission’s wide ranging recommendations in its 'He Purapura Ora, he Māra Tipu from Redress to Puretumu Torowhānui Report' (the Interim Redress Report), issued in 2021. In that report the Commission described the problems with the current redress systems and said that ‘Current redress processes are unquestionably failing to produce fair, consistent or adequate outcomes for survivors and their whanau affected by tūkino, or abuse, harm or trauma in care.’[2] It called for the establishment of a new independent redress scheme which would replace all current abuse in care claim schemes, including the one administered by the Ministry. The Government has not made final decisions on the implementation of a revised scheme. 

The alternate scheme proposed by the Commission would likely address many of Cooper Legal’s concerns with the Ministry’s scheme, but there is no certainty about whether and when such a scheme might be implemented. I am proposing to decline to investigate or make recommendations on some aspects of Cooper Legal’s complaint where the Commission has made findings and recommendations and where there is no value in a further comment by the Ombudsman. Where I have formed an opinion it is hoped that my expectations help the Ministry / Crown to identify improvements to the current scheme and inform the design of the new redress system.

It is important to acknowledge the enormity and complexity of the task faced by the Ministry and other agencies in assessing whether to accept these kinds of claims of historic abuse in care. The claims raise a host of difficult legal, ethical, emotional and financial issues. Pursuing them can equally have profound emotional and financial consequences for claimants. Claims of abuse in care involve highly traumatic experiences suffered by the claimant many years ago, often in secret and in ways which are necessarily undocumented. Allegations can impact the privacy and reputation of other parties, particularly alleged perpetrators. The government’s ability to resource remedies is not unlimited and, to some extent, it may not be wrong for the Crown to resist the settlement of claims where it believes they are not factually made out or where the Crown has a valid legal defence.

Despite this complex context, my view is that the scheme has to be consistent with a range of principles of good administrative decision making:

1. There should be proactive publication of eligibility criteria for the scheme and any policies, procedures or guidance used by the agency to assess claims;
2. There must be good engagement with individual claimants so they understand: 
   1. how their claim is being assessed;
   2. what information they can or should provide in support of their claims;
   3. what information is being / has been taken into account by the agency;
   4. where a final decision is made, a clear explanation of why claims are accepted or rejected and why the agency considers the amount offered to be justified;
3. There must be a simple process for a claimant to raise concerns about the assessment of a claim, particularly where they can point to information suggesting the outcome is wrong or unjust, and the Ministry must preserve a claimant’s ability to seek an independent investigation of the approach by an Ombudsman;
4. There must be a clear rationale for the benchmark sums used to categorise payments and, thereafter, a consistent application of those benchmarks in individual cases;
5. Any conflicts of interest must be clearly identified and carefully managed.

In summary, the process the Ministry follows and the decision reached must be transparent and clearly justifiable. 

There are some aspects of the scheme which, in my opinion, are inconsistent with these principles:

1. Cooper Legal was not notified of substantial changes to the eligibility criteria and processes which occurred in November 2018 until April 2019 (although, to its credit, the Ministry does appear to have now published all relevant eligibility criteria and the policies, procedures or guidance used by to assess claims);
2. The Ministry has not made it clear to individual claimants when a Step 2 analysis has been applied;
3. Claimants are not being given good enough reasons to explain how the Ministry has assessed their particular claims. Giving clear reasons is critical to the fair administration of this scheme. While the Ministry is to be commended in its efforts to condense its reasons for these complex decisions, it needs to go further in its decision letters to clearly explain: 
   1. the process it has followed (particularly whether a one-step or two-step analysis has been applied);
   2. the information taken into account or reviewed; 
   3. why allegations have been accepted/not accepted
   4. why each settlement amount being offered is justified by reference to the relevant payment categories (including how the cumulative effect of all accepted allegations have influenced the amount offered to a claimant).
4. It is unreasonable for the Ministry to refuse a claim simply because it cannot find substantiating information in its own files. Instead the Ministry should take a holistic approach to its assessment of whether an allegation should be accepted. This could include inviting the claimant to put forward their own evidence to substantiate an allegation in these situations. The evidence the Ministry could have regard to can be in a variety of forms. Taking a more holistic approach will help ensure a fair and reliable decision is able to be made; 
5. The rates of payment are arbitrary and unreasonable. While the Ministry appears to be adopting a generally consistent approach to the quantum of payments made, the underlying benchmarks for payments are low, the degree of harm to a claimant is not considered and there is no clear justification for the rates of payment when compared to some comparable international and domestic rates of payment;
6. Some elements of the NZBORA payments framework are unreasonable and need further consideration, in particular the basis for the rates of payment and the narrow range of cases in which allegations will be accepted without individualised assessment.

It is my opinion that these aspects of the scheme / the Ministry’s administration of the scheme are unreasonable.

There are however aspects of Cooper Legal’s complaint which I do not propose upholding:

1. There is no evidence to conclude that the Ministry improperly “deflates” the severity of abuse to streamline decision making processes;
2. It was not inappropriate for the Ministry to launch the revised scheme in 2018 ahead of developing detailed guidance material;
3. The Ministry’s approach of preparing lists of issues is not unreasonable;
4. It is not unreasonable for the Ministry to transfer claims to the Ministry of Education where it considers primary responsibility for a claim sits with it; 
5. It is not unreasonable for the Ministry to only review a limited range of information before accepting less serious allegations; 
6. It is not unreasonable for the Ministry’s policy/procedure to require some information which supports an allegation of abuse before making a payment for more serious allegations (but it must not apply this criteria inflexibly);
7. The scheme does not improperly limit the types of abuse which can be taken into account under the scheme;
8. The Ministry has taken steps to address inconsistencies between payments under the old and revised schemes;
9. There is no evidence to show that the Consistency Panel process is improperly deflating rates of payment;
10. It was not unreasonable for the Ministry to pause assessment of NZBORA claims while it obtained and considered legal advice;
11. I have not identified evidence that the Ministry’s obligations to any current staff who are the subject of an allegation is unreasonably impacting its assessment of claims (conflicts of interest);
12. It is not improper for the Ministry to seek comment from other agencies and NGOs on aspects of a claim where they may be able to provide relevant information; 
13. The design of the Ministry’s internal review process is not unreasonable. 

Whenever an Ombudsman forms the opinion an agency has acted unreasonably, as I have here, they may make such recommendations as they think fit.[3] I am conscious that the government is currently considering the design of a new redress system which will likely replace the current scheme administered by the Ministry. Any changes to the current scheme will have flow on effects to claims already considered and, potentially, the design of a revised scheme. 

In this context, I have not made recommendations in areas that will be addressed by the Royal Commission of Inquiry’s recommendations. However, there are some improvements I consider the Ministry should make to its current processes and aspects of my opinion could be considered in the design of the new scheme. I therefore recommend that:

1. The Ministry should review its guidance and practices for communicating decisions to claimants to incorporate the expectations outlined in my opinion;
2. The Ministry should review and amend current practice to reflect my expectation that a claim is not declined solely on the basis of an absence of substantiating information in the Ministry’s files, and, instead, that there is a more holistic assessment and further engagement with claimants and other information sources before a final decision is made on these claims; 
3. The officials providing advice on designing the new redress scheme (led and coordinated by the Crown Response Unit) should review this opinion to identify aspects which may inform the design of the revised scheme. 

I want to emphasise that it is open to Cooper Legal/their clients and other claimants to complain to me if they consider the Ministry has taken an unfair or unreasonable approach to an individual claim. Being able to seek independent review of a particular approach taken by the Ministry is, in my view, absolutely critical in this context. I have therefore made some informal suggestions about how the Ministry might take steps to preserve this important right of complaint. 

Footnotes

1. Claims relating to abuse in care suffered after 1 April 2017 are dealt with by Oranga Tamariki. Return to text
2. Royal Commission of Inquiry, He Purapura Ora, he Māra Tipu from Redress to Puretumu Torowhānui, page 264 (accessible here: He-Purapura-Ora-he-Mara-Tipu-Vol_1_Web.pdf). Return to text
3. Section 22(3) Ombudsmen Act 1975. Return to text