State agencies’ out-of-court claims processes
Four government agencies run in-house claims processes, each responsible for a care setting where abuse took place. To date, these claims processes have paid close to $48,000,000 in settlements to over 2,300 survivors, excluding legal costs. A majority of claimants to these processes are Māori, reflecting the disproportionate number of Māori in care historically and today.
Some survivors have expressed satisfaction with the way the claims process treated them and the settlements they received. Many more, however, found the claims processes slow, difficult to navigate and inconsistent in what they offered. They said the processes were cold and transactional, the staff disbelieving, and the apologies insincere. Some have described the process as worse than the abuse itself. Settlement offers varied from agency to agency, and survivors felt they had no choice but to accept the offer, or walk away with nothing. Survivors’ experiences and the common features of these claim processes and those run by faith-based institutions are described in more detail in Part 2.5. Here, we summarise each State agencies’ claims process and their defects.
Ministry of Social Development
The Ministry of Social Development runs a claims process for claims of abuse in social welfare settings, such as children’s homes and foster care homes, that happened before 1 April 2017. (Oranga Tamariki runs a separate process for such claims after 1 April 2017, the date of its establishment: see below.) The ministry has received more claims than any other – it received over 4000 claims between 2003 and March 2020, more than half of them from Māori survivors. 59 per cent of claims were registered by survivors directly, without the involvement of a lawyer. At June 2020, less than half the claims had been resolved or closed.
The ministry began receiving claims in 2003. In July 2004, the then Department of Child, Youth and Family Services, established an historic claims team (which moved to the ministry when the department and ministry merged two years later). Survivors had to file claims in court before the team would look at them. As new claims began piling up in the courts, the ministry, now responsible for the team, decided to develop a formal out-of-court settlement process. It met a handful of survivors to discuss what they wanted from a settlement process. It also considered the Crown’s interests, for example in “risk management and fiscal prudence”, and public and political credibility. The ministry would no longer require survivors to file their claims in court. Instead, survivors could make a claim directly with the ministry. Staff in the team would listen to survivors’ experiences, review their social work records, assess their claim and make a financial offer to settle the claim. The ministry began using this process in May 2007 to settle claims with legal merit. In 2008, after Cabinet affirmed the Crown litigation strategy which directed agencies to settle meritorious claims, the ministry began using its claims process to settle even those claims where there were possible legal defences, such as limitation or accident compensation legislation.
The team assessing claims was small, and it made slow progress through claims. A large backlog accumulated, and in May 2015 the ministry introduced a “two-path approach” to speed up resolution of claims. It created a new fast-track process available to survivors who had made claims before the end of 2014, to try and clear some of the backlog. Under the fast-track process, the ministry did not do a full investigation of claims, instead conducting only a basic checking of facts to ensure the ministry was legally responsible and the claimant was in social welfare care at the relevant time, and that any named staff or caregiver was working at that location at the time. This allowed survivors to receive settlement offers more quickly. The ministry said its process was to accept allegations at face value, but the offers of monetary payment were moderated so that they had the same distribution as offers made under the full assessment, which often rejected many allegations. This meant some survivors received an offer corresponding to a lower level of abuse than the abuse included in their claim. The net effect was that offers were lower unless they underwent a full assessment. Survivors could reject a fast-track offer and continue with the full assessment, but would face longer delays and more scrutiny of their claim. Many survivors accepted the fast-track offer because they were struggling financially and reluctant to wait years to settle. Once they accepted, they were not able to go back and ask for a full assessment. The ministry made fast-track offers to just over 700 claimants, and 85 per cent accepted their offer.
The key aspects of the claims process that a claimant would experience today is in large part the same as the full assessment process created in 2007, though the ministry no longer fully investigates each concern. For claimants without a lawyer, the process usually involves a one-on-one meeting with a staff member to explain the claims process and get details on their claim. The ministry takes into account the interview and survivors’ records and makes a decision whether it will accept that the abuse happened. At a follow-up meeting, a staff member tells survivors the ministry’s decision, and any settlement offer. It offers a contribution towards legal advice on the offer before survivors accept or reject the offer. For survivors with a lawyer, there is typically no meeting. Communication is in writing between lawyers. A settlement offer typically includes an apology, a financial payment, as well as contributions towards legal aid debt and some counselling services. Financial payments range from $1,000 to $90,000, although about 75 per cent range between $10,000 and $25,000. The average is about $20,000. Staff sometimes also help survivors access other services such as ACC, but there was no formal process for referrals.
The ministry’s claims process was challenged by Māori. In 2017, a group of survivors and iwi lodged seven claims with the Waitangi Tribunal alleging, among other things, that the ministry did not properly consider tikanga Māori and te Tiriti o Waitangi and did not properly take into account the over-representation of Māori in State care. In response, the ministry undertook consultation with people who were making claims through the claims process, including a specific consultation with Māori survivors. None of the Māori survivors had encountered any Māori staff during the claims process. They said they did not feel the process recognised or catered for their cultural needs, and that they found the process detached and lacking in empathy. Māori survivors wanted a more collective, inclusive approach, based on tikanga Māori.
Following these reviews, the ministry has begun making improvements to the claims process, although it does not expect to completely put these changes into effect for several more years. It has employed more staff from more diverse backgrounds, set up a claimant support team, and streamlined the assessment process, mainly by not investigating all of survivors’ allegations. It is looking at offering new forms of apology, helping survivors understand their personal records, and contacting claimants more regularly throughout the claims process. In October 2020, it began a pilot “wraparound” support service, initially for 15 survivors who had made claims to the ministry. Under the pilot service, a dedicated person, known as a navigator, is assigned to each claimant to help support them through the claims process and to connect to support services. These improvements suggest a genuine intention to be more responsive to survivors. However, the experiences of some survivors, such as David Crichton (whose experience is detailed in Volume 2), suggest that even recently the ministry’s process has not met the cultural needs of some survivors. Delay in resolving claims is also still a major issue. At the end of June 2020, there was still a backlog of 2,235 claims.
Oranga Tamariki runs a separate claims process for claims relating to abuse in care and protection and youth justice settings, that happened after its establishment on 1 April 2017. If the abuse took place both before and after that date, the agency with responsibility for the greater amount of harm will usually manage the claim. Oranga Tamariki has also handled 19 claims relating to abuse before 2017 because the survivors first raised those claims with Oranga Tamariki, and it was considered more practical that the agency continue to look at them rather than require the survivor to engage with another agency. The agency resolved the last five of these claims this year.
Oranga Tamariki distinguishes between a claim, involving an allegation of abuse in the agency’s care, and a complaint which tends to be about less serious actions of Oranga Tamariki’s staff, caregivers or systems. Any person can make a complaint, via phone or email, or through a feedback page on the website. Steven Groom from Oranga Tamariki told us if a person’s complaint includes an allegation they were abused while in Oranga Tamariki’s care, it will be treated as a claim, and be put through a separate claims process.
Oranga Tamariki told us it intends its claims process to have consistent outcomes with the Ministry of Social Development where appropriate. However, the process is still under development, and as of late 2020 the agency still had no formal policy setting out the process. Instead, staff rely on a draft policy document and guidance from managers. Oranga Tamariki told us that if a survivor raises a potential claim, the advisor working on the claim will discuss with the survivor and explain the process verbally to them, but there is no formal information about what survivors can expect from the process. The agency told us it would await our recommendations before formally adopting any process.
The Office of the Children’s Commissioner has expressed concerns that Oranga Tamariki’s internal complaints mechanism is not independent or accessible for children and has emphasised the need for a truly independent monitoring system.
Ministry of Health
The Ministry of Health runs a claims process for abuse that happened in publicly funded health institutions before 1993. From 1993 onwards, legislation provided for complaint mechanisms for complaints of treatment in care, including (since 1996) the Health and Disability Commissioners, and as a result, fewer claims have been made for this period. Any claims for abuse in care that are made about events occurring after 1993 are dealt with by individual District Health Boards, and not the ministry. Outside of the claims process, the ministry has also settled some claims of more recent abuse, for example in private, State-contracted residences for disabled people, and some for abuse in general medical surgical wards of public hospitals prior to 1993.
As already discussed, the group settlement to Lake Alice claimants in 2000 and 2002, and the associated media attention, resulted in an influx of claims about abuse in other healthcare settings. Until 2012, the Crown Health Financing Agency was responsible for resolving these claims. In August 2011, Cabinet decided to disestablish the agency and move responsibility for its 330 or so outstanding cases to the ministry. It allocated $5 million to settle these claims. Crown Law and the law firm Cooper Legal, which represented many of the claimants, formulated a matrix to apportion the money. Settlements ranged between $4,000 and $18,000, depending on the level of abuse and the quality of supporting evidence. Offers also included an apology and payment of legal fees. When the ministry took responsibility in July 2012, new survivors had come forward, and more claims continued to be made.
The ministry established a service to resolve all new claims related to abuse in psychiatric hospitals. The service was modelled on the settlement process run by the Crown Health Financing Agency, but the payment levels were discounted by half to range from $2,000 to $9,000. Chief Legal Advisor to the ministry, Philip Knipe, told us this reduction was to recognise that no legal proceedings or legal costs needed to be incurred.
The ministry continues to respond to redress claims in largely the same way today. When survivors contact the ministry, they are asked to provide basic details about their abuse, records are requested and some research is done. The claim is put in a queue for assessment. Once a claim is allocated to an assessor, they review the records available and if required, may arrange for a phone consultation. The ministry does not assess claims against any hard-and-fast yardstick. Once the response to a claim is approved the ministry makes an offer, usually within four to six weeks of obtaining claimants’ medical records. Offers include a letter of apology and a “wellness payment” of up to $9,000. All contact is in writing (including email) or by phone. Survivors can ask the ministry to review its decision if they are unhappy with the offer.
The ministry maintains a separate claims process for Lake Alice survivors. They receive compensation consistent with the original group settlements. The ministry has taken no active steps to identify or contact any Lake Alice survivors who may be unaware of its redress process. Survivor Patrick Stevens (not his real name), for instance, learned of the process only by chance in 2017 and a year later – just before his death – received $80,000 and an apology for his abuse at Lake Alice. The ministry has not produced any public information about the Lake Alice process or the service for other historic abuse claims.
Ministry of Education
The Ministry of Education is responsible for abuse claims in some schools and other educational settings. Until 2010, it had received only a handful of claims, and it assessed them on a case-by-case basis. The ministry was named in several claims that also related to abuse in social welfare settings. The Ministry of Social Development managed those claims. In 2010, a high-profile conviction of a former staff member for abuse at a residential school led to an influx of claims from other former students of the school. This prompted the ministry to develop a formal claims process. Initially, the process related only to abuse or neglect at residential special schools before 1993. However, the ministry continued to receive claims for abuse that had happened after that period, or at schools that were not residential special schools. In 2018, the ministry extended eligibility to include some claims of abuse after 1993, where the abuse was at residential special schools that were closed, and health camp schools. It also now sometimes considers claims relating to other State schools, for example if the school has closed. However, in general, it is boards of trustees, and not the ministry, that have responsibility for most State schools since 1989. Survivors abused in those schools who wish to make a claim need to approach the individual board. The response can depend on resources, capability and approach of the school board.
Between 2010 and October 2020, the ministry received 177 claims. Over that same 10 year period it resolved just 46 claims, leaving 131 outstanding. The ministry said it had only a small team to handle claims, and the number and complexity of cases had increased in recent times.
The ministry’s claims process has scarcely changed since it was set up. After lodging a claim, survivors have a phone conversation with an advisor to discuss their claim. The ministry gathers survivors’ records and adds them to an assessment waitlist. Waiting times are long. If claimants are willing, an assessor will meet them in person to hear their story and what redress they want. The assessor will consider the evidence and prepare an assessment report, which will include recommended redress.
Offers usually include an apology, a financial payment and the cost of legal fees. Payments have generally been between $3,000 and $40,000. The average is about $15,000. The ministry will provide counselling and other services only if asked. A letter explains the ministry’s offer, and provides the information the ministry holds. However, explanations sometimes appear opaque and lack detail, which the ministry told us is because in some cases there is only limited information found in records. The ministry website states that claimants who are unhappy with its response “can discuss this with us”, and that claimants can provide additional information if they are concerned that certain information has not been considered.