The accident compensation scheme can be both a source of redress and an obstacle to redress for survivors. As the former, it can provide counselling and payments for personal injury. As the latter, it is, as already noted, a bar to pursuing injury claims through the courts. Many survivors said they had gained a lot from counselling paid for through the scheme, which is administered by the Accident Compensation Corporation (ACC). However, survivors were also frustrated by many aspects of the ACC system. In large part, this is because the purpose of ACC was never to handle abuse in care claims and nor was it designed with this in mind. Because of this, ACC offers a patchwork of coverage for abuse in care that includes only some time periods and types of injury. The type and level of compensation available to abuse in care survivors is limited by the Accident Compensation Act 2001. Many survivors said that making a claim for personal injury could be complicated. Survivors found it tiring to be required to prove their need for entitlements time and again.
Scheme devised to replace civil litigation
The accident compensation scheme was introduced in 1974 to overcome many of the problems with civil litigation just discussed, such as high cost, difficulty in identifying defendants and proving causality and long delays. In general, payments are lower than the courts may award, but the process of getting them is easier and faster. As a personal injury insurance scheme, it provides treatment, rehabilitation and some compensation to people injured in an “accident”, which is broadly defined to include intentional injuries like assault. It is a no-fault scheme, meaning it provides coverage regardless of who caused the injury.
Injuries covered by scheme
The accident compensation scheme covers a range of personal injuries, both physical and mental. Eligibility for survivors is complicated because the dates for coverage vary according to the type of injury. ACC considers mental or physical injuries resulting from sexual abuse to be “sensitive claims”. The types of personal injuries most relevant to survivors are:
- Physical injuries from physical violence or sexual violence: The date of injury for physical injuries, or mental injuries resulting from physical injuries, is the date that the physical injury was sustained. Coverage for physical injuries begins from 1974 when the accident compensation scheme was introduced. Only injuries from an application of force, for example, from assault, are covered. This means that physical injuries resulting from neglect, for example, are not covered.
- Mental injury caused by a physical injury: A claimant who has suffered a physical injury that is covered by the accident compensation scheme and that has caused a mental injury may be covered for both injuries. Some survivors are badly affected by abuse but not to the clinically significant level of dysfunction required to be covered. For those that do have clinically significant dysfunction, it can be difficult to prove a causal link between the physical injury and the condition. There is no cover for mental injuries suffered by witnessing, or being threatened with, abuse. Nor is there cover for emotional or psychological abuse.
- Mental injury caused by sexual abuse: A claimant can receive cover for mental injury in the absence of physical injury if the mental injury was caused by certain sexual offences including sexual violation, sexual connection with a child or indecent assault. As with mental injury caused by physical injury, the mental injury must meet a level of clinical significance, and the claimant must be able to show that it was caused by sexual abuse. The Accident Compensation Act 2001 considers the date for these mental injuries to be the date the claimant first receives treatment for them, not the date of the abuse that caused them.
A person’s general practitioner, physiotherapist or sensitive claims counsellor usually makes a claim for cover. These treatment providers act as gatekeepers to ACC personnel, potentially imposing their own views about the merits of their client’s case in the claim for cover. Despite this, treatment providers often do not understand the compensation system particularly well, especially in relation to lodging historic or sensitive claims.
Legal aid is not available to help a survivor make a claim for cover, although it is available if ACC rejects a survivor’s claim. Survivors must supply their full medical and care records, which can mean they need to contact hospitals, doctors, social welfare agencies and counsellors that they have dealt with over the years.
Once ACC accepts a claim for cover, a claimant can apply for entitlements. These are set out in law and can include treatment for the injury, counselling, a lump sum payment or independence allowance for permanent impairment, weekly compensation for temporary impairment and social and vocational rehabilitation.
Types of entitlements
For survivors suffering physical injuries from physical or sexual violence, the injury, and the supports and entitlements they require, are often quite easy to show. However, for survivors with mental injuries, who have traditionally faced more stigma and disbelief, it can be harder to access some entitlements, such as financial or rehabilitative ones. Survivors of abuse in care often have both physical and mental injuries which can make seeking entitlements complicated and difficult.
Since 2010, ACC has provided counselling services to 68 per cent of people who have lodged sensitive claims. ACC allows sensitive claimants up to 14 hours of counselling “pre-cover” and throughout the cover determination process. Survivors must then have their claims accepted to receive further counselling. Only 41.5 per cent of survivors who received initial counselling continued with further sessions.
There are not enough ACC approved counsellors to meet demand. More than 10,000 calls from sexual assault survivors were unable to be accepted by suppliers of mental health supporting the year to September 2021, due to a lack of capacity. For those whose requests are not rejected and who manage to get on a waitlist, the average national wait time for an appointment is currently nine weeks.
Many survivors said counselling was helpful. However, several also discussed how they felt pressured by ACC to get well, and how any sign of improvement was taken as evidence that they no longer needed counselling.
Weekly compensation for loss of earnings
Weekly compensation is for people whose injuries have left them temporarily unable to work. Eligible claimants receive 80 per cent of lost earnings or loss of potential earnings at 80 per cent of the minimum wage. To receive weekly compensation, survivors must prove that they are earners, and also provide evidence they are unable to work. Only 1.25 per cent of those who have lodged sensitive claims since 2010 have received weekly compensation, likely because they are not able to show they are “earners”. This particularly impacts disabled people, as many disabled people face significant barriers to employment and so are less likely to be in paid work before the injury.
Independence allowance and lump sum compensation for permanent and
Survivors with permanent or long-term impairment caused by injury can receive either a one-off lump sum payment or an ongoing independence allowance. The independence allowance is calculated as a weekly amount (although paid quarterly) that a survivor receives throughout the period that they are considered impaired. Which payment a survivor qualifies for depends on the level of impairment and the date that the injury occurred. Many survivors feel frustrated that they are unable to choose between a one-off or ongoing payment.
Few sensitive claims result in a financial payment at all. Of the total sensitive claims lodged since 2010, lump sum payments and independence allowances have only been paid to 2.4 per cent and 6.6 per cent of claimants respectively. The sums involved are not generous. The average lump sum payment was $7,764, while the average total amount paid to claimants through independence allowance payments was $3,936. Although difficult to directly compare, the biggest lump sum payment was $45,648 and the largest weekly independence allowance was $94.97 per week.
To qualify for either payment, a medical practitioner must certify that the claimant’s injuries are permanent and stable. For sensitive claims, this involves undergoing a psychological assessment to determine the level of impairment. Claimants are then given a percentage of impairment. The higher the percentage, the higher the compensation is. The impairment must be caused by the injury. For some survivors, part of their impairment may be perceived to be caused by other environmental factors, unrelated mental health issues, or disability related impairments. This can reduce the level of impairment for the purpose of calculating the entitlement under ACC.
This experience is distressing for survivors, who find it dehumanising to have their trauma reduced to a percentage. Kathleen O’Connor, who spent years fighting ACC over her sensitive claims, said
“ACC used that assessment to tell me that I was 25 per cent impaired. I don’t get how you can put a percentage on a person ... how can you put a number on people’s trauma?”
Disabled survivor Matthew Whiting also described his frustration with this approach: “the current ACC Sensitive Claims assessment model for sexual abuse is crap. It looks at you based on a deficit-model. I can function at a high-level by compartmentalising situations and I can continue to work. It’s as though I had to prove the impact on my life of the sexual abuse before I could get compensation. This is a narrow definition of my abuse and the impact it had and continues to have on my life.”
Claimants may also apply for rehabilitation services from ACC. These include social rehabilitation (such as aids, appliances and home help) to help maximise the claimant’s independence and vocational rehabilitation (such as training and job trials) to help them return to the workforce as much as possible.
Rehabilitation is most commonly provided to those with physical injuries. Of the sensitive claims lodged since 2010, only 1.3 per cent have received vocational rehabilitation and only 8.7 per cent have received social rehabilitation. A practitioner told us that, in her experience, survivors with sensitive claims must usually specifically request social rehabilitation in order to receive it. Survivors must also undergo assessment to qualify for these services. For social rehabilitation, this involves a needs assessment which can involve sharing very personal information with assessors. For vocational rehabilitation, survivors must be incapacitated and receive weekly compensation in order to be eligible. They are required to undertake occupational and medical assessments at the beginning and end of their planned rehabilitation. The vocational independence process has been criticised as once claimants are deemed able to return to work, they are removed from the accident compensation scheme even if no jobs exist for them in reality or are far removed from their training.
Survivors’ experiences with ACC
Many survivors told us they had difficulty understanding how the accident compensation scheme worked and how to make a claim. Some spent years unaware they were even eligible to make a claim until being told by family, work colleagues or doctors. To access entitlements, survivors must first satisfy various legal tests and undergo medical and/or psychological examinations. Many survivors describe the process as long, intrusive and re-traumatising. One disabled survivor described the burden of needing to constantly re-tell what happened in order to access support. They said: “
It is too painful to re-tell and not everyone can do this. Disabled people already have huge barriers to access any support service”.
Some survivors were satisfied with the service and entitlements they received from ACC, and many spoke positively about the benefits of counselling. Phillipa Wilson said ACC set her up with counselling as soon as she made contact, and it also told her she was entitled to a payment. She said staff were “amazing,” “supportive” and always “checking in on me”.
Many others, however, described ACC’s processes as complex and difficult to navigate. Frankie Vegas said she found dealing with ACC a frustrating battle. She said staff did not ask how they could support her through the process, and she felt like they were only interested in “ticking boxes”. Leoni McInroe said ACC’s many assessments left her feeling “vulnerable and afraid” and “powerless” to decline any of its requests because it might jeopardise the outcome of her claim, adding that she felt “unsupported, intimidated, demeaned, vulnerable and often violated during the entire process”.
Many survivors were unhappy with the repeated intrusive medical assessments and the need to continuously prove their eligibility for cover. Assessments for eligibility were sometimes delayed because of a shortage of qualified assessors. For some, this repeated retelling meant they had to relive their trauma over and over again. One survivor described dealing with at least 15 people and divisions in 18 months. Another, Ann-Marie Shelley, said the succession of assessments left her with the impression that ACC would continue sending her to different psychiatrists until it got the decision it wanted. During Kevin England’s assessment, he was asked questions about his abuse that he had not even discussed with his counsellor and he found the entire process very intrusive and upsetting so early in his recovery. Kathleen O’Connor described how her bad experiences with sensitive claims prevented her from making a claim about a later rape, saying: “I just didn’t want to go through that same tunnel again”.
Survivors also expressed concerns about their privacy and that staff and assessors were able to access their highly personal information. Sensitive claims may be managed by a single staff member, but sometimes claims are handled by larger teams. One claimant was distressed to discover that since his claim had been closed, it had been accessed by more than 90 staff, and more than 350 times.
ACC said it was aware of the impact of requiring survivors to see a string of assessors and was taking steps to streamline the process by forwarding previous assessments to subsequent assessors (with individuals’ consent) to limit survivors describing their abuse once again. It said it funded two free services – Way Finders and Workplace Advocacy Service – to help people through the claims process, although not review hearings and appeals.
Reviews and appeals
ACC must issue a decision on any request for cover or an entitlement in a timely manner, and all decisions have a right of review. ACC told us it takes on average 93 days to make an initial decision about whether to accept a claim for cover. However, this does not include the next step, a decision on entitlements, which is often delayed due to a lack of qualified staff or assessors.
ACC sends review applications to an independent organisation to conduct a review hearing and issue a decision. Claimants have the right to appeal to the District Court and, in some circumstances, the High Court and Court of Appeal. Although reviews are supposed to be a low-level examination of a claim, in reality, they more closely resemble litigation. Claimants must prove their case on the balance of probabilities. Almost every review involved additional medical reports and the gathering of more supporting evidence. The cost of psychological or psychiatric reports can easily be $2,000 or more.
Given the standard of proof required and the complexity of an ACC review or appeal, claimants often feel they need legal representation. This can be very costly, however, and the financial threshold for legal aid eligibility makes it hard to qualify. Very few lawyers working for Legal Aid specialise in accident compensation law. For those who do get advice the aid is usually in the form of a repayable loan.
ACC is legally required to promote measures to reduce the incidence and severity of personal injury. As part of this, they are required to collect, coordinate and analyse information about injuries to help inform prevention efforts. However, ACC recognises that for sensitive claims asking for intrusive details could re-traumatise claimants or make it harder for them to lodge a claim. Because of this, ACC does not ask that claimants disclose the identity of their abusers or more information than is needed for the cover decision. To help with prevention, ACC has set aside $9.2 million from the 2020/2021 financial year to fund programmes preventing family violence and sexual violence.
Next: Other avenues