Handling of existing claims
Our inquiry has not halted the flow of claims to institutions. Some survivors may not, or cannot, wait until the new puretumu torowhānui scheme is established. We expect institutions to try hard to resolve these claims received in the lead-up to the scheme’s establishment. Commendably, some claim settlements include a clause to the effect that the redress survivors have received does not affect any additional rights or puretumu torowhānui options resulting from our recommendations. We consider all institutions should include this “without prejudice” clause in their settlement offers. We also consider, given the limitation reforms we recommend, that institutions should rely on limitation defences only in cases where they reasonably consider a fair trial will not be possible.
91. Institutions should use their best endeavours to resolve claims in the lead-up to the establishment of the puretumu torowhānui scheme and should offer settlements that do not prejudice survivors’ rights under the new puretumu torowhānui scheme or under any legislation enacted in response to our recommendations on civil litigation.
92. Institutions should, until our limitation reform recommendations are implemented, rely on limitation defences only in cases where they reasonably consider a fair trial will not be possible.
We have already recommended that the puretumu torowhānui scheme should have the power to make interim payments to seriously ill and elderly survivors. We consider such payments should also be available to such survivors in the period leading up to the scheme’s establishment. To distinguish between the two, we refer to payments before the scheme’s establishment as “advance payments” (see recommendation 18).
The Crown should set up and fund a mechanism so those unlikely to be able to make a claim to the scheme because of age or illness could receive advance payment. This mechanism would cease once the scheme was in operation. Whether faith-based institutions and indirect State care providers would be expected or required to contribute to the funding of the mechanism would be for the Crown to decide, as would the question of whether those receiving the payment could also seek redress from the institution responsible for their abuse.
Those applying for an advance payment would need to show they had been in care, but would not need to supply evidence of having been abused, beyond providing a statutory declaration to that effect. Given such brief requirements for eligibility, we consider the payment should be a fixed sum, but one that nonetheless provides a meaningful monetary payment. Survivors should have a right of review if their application is declined. Survivors who receive the payment should be able to make a claim to the scheme once it is established. The scheme would deduct this sum from any financial payment they received.
This mechanism should stop when the puretumu torowhānui scheme starts. However, as already recommended, the scheme should continue this priority on claims of elderly and seriously ill survivors and be able to make urgent interim payments to them.
93. The Crown should immediately set up and fund a mechanism to make advance payments to survivors who, because of serious ill health or age, are at significant risk of not being able to make a claim to the puretumu torowhānui scheme. The mechanism should stop when the scheme starts.
We have already said the puretumu torowhānui scheme should offer a listening service to survivors, and we also consider such a service should be available in the period between the end of this inquiry and the start of the scheme. This interim listening service should be similar in form to the one-on-one sessions currently held by commissioners. These sessions have proved invaluable to many survivors, allowing them to discuss their abuse in a safe and supportive environment. A referral and assistance service should be part of this listening service, given some survivors will have urgent needs that need attention.
94. The Crown should fund a listening service for survivors in the period between the end of this inquiry and the establishment of the scheme. For those with particularly urgent needs, this should include referral and assistance to access existing services.