Important note:

The updates below are intended solely for the information of claimants. They are not intended as a substitute for general legal advice to persons who are not clients of Cooper Legal.

DEPARTMENT OF SOCIAL WELFARE ACTION

    May 2015

Introduction:

In our recent newsletters, we have referred to our discussions with MSD about implementing a “fast-track process” for resolving your claims.  We advised you that discussions broke down when it became clear MSD had not asked the Government for nearly enough money to fund the process.  We also advised you, in December 2014, that we agreed to again work with MSD in the hope we could reach agreement on a process which would resolve your claims in a fair, but prompt, way.  

Announcement by MSD to fast-track some claims

On 7 May 2015, without prior warning to us, Social Development Minister Anne Tolley announced the option of a “fast-track” settlement process available for claims lodged before the end of 2014, in other words, for clients who instructed us by the end of 2014.  She stated that claimants who choose the fast-track settlement approach will receive a “prompt financial payment” and a letter of apology from MSD’s Chief Executive. 

Virtually no detail as to the way in which the fast-track process will work has been provided by the Minister.  What we know from the Minister’s press release is that the fast-track settlement approach involves “an assessment of the claim, and a face value of the key elements of the claim subject to checking some key facts”. 

What you need to know

We have major concerns with this process, outlined below.

 - We do not have enough detail, at this stage, to give you advice about whether this process would work for you.

 - The big issue is MSD has not put aside enough money to properly compensate you under this process.

 - Once we have more information, we will assess each claim and be in touch.

Concerns with proposed process

We have many concerns with the process, set out here:

 - The process is under-funded, by up to at least 50%.  What this means, is that although the purpose of the process is to ensure that similar payments are made to those which have been made in the past, in fact there is not enough money to do that.  MSD knows this is the case.  That is because, when we worked with MSD on this process last year, we agreed to “dummy run” nearly 200 claims through what was then MSD’s proposed process, to see what dollar amount those claims would attract.  MSD’s results were very similar to this firm’s results.  In other words, MSD agreed that many clients should receive a significantly higher payment than had been paid to claimants who had accepted settlements, in the past.  But MSD does not have the budget to pay those amounts.

 - Accordingly, we expect that many claims will have to be artificially “deflated” to fit within the funding available.  This is not fair, or workable. 

 - The process does not include practice failures, which are errors of social workers involved in your care.  Those errors include: leaving you in neglectful and/or abusive homes (often for years), knowing about the abuse and/or neglect and/or returning you to abusive homes.  In cases already settled, practice failures have attracted a payment of damages, in some cases of a significant amount.  Under this proposed process, no damages would be paid.  

 - The fast-track process makes no specific allowance for payment of damages for breaches of rights under the New Zealand Bill of Rights Act.  We have always stated that clients with a Bill of Rights Act claim should be dealt with separately, as those clients are entitled to be paid damages for breaches of their rights. 

Many important aspects of your claims will not attract any payment under this process.  These include:

 - Being assaulted by others with whom you were in care (sometimes at the direction of, or through the failure of, staff or caregivers);

 - Being admitted through the Secure Unit as a matter of course;

 - Missing out on schooling;

 - Being assaulted and/or neglected by a parent/step-parent while in care;

 - Being assaulted or otherwise abused by an adult partner or children of a foster parent or other caregiver;

 - Being refused assistance after reporting abuse;

 - Witnessing other children in care being sexually and/or physically abused by staff members or others in care;

 - Suffering neglect and/or cruelty from caregivers (residential and non-residential).

In addition to the above, we are not clear whether any sum will be paid to the many of you who suffered sexual assaults at the hands of others you were in care with.  Although we had negotiated a reasonably small amount for sexual assaults of that nature, we are no longer clear whether the fast-track process, now to be implemented, will include any payment for that. 

We have no details as to what the checking process will involve, or what “key facts” will be reviewed.

In our previous communications with MSD, we were told the “fact check” required some evidence that the claimant believed what had happened to them had harmed them in some way.  We raised concerns about this.  We also raised concerns that having MSD staff undertake a “fact check” would take considerable time and would not, therefore, speed up the process in the way Minister Tolley has stated it will. 

We have a major concern that the “fact check” will result in significant aspects of your claims being rejected, on the grounds that you have been unable to remember a staff member’s name, or your records do not show you were in a particular placement, or MSD has already decided that a particular, former staff member was not abusive.  

Conclusion

Having made all those comments about our concerns with the “fast-track process”, there will be some clients who we think will benefit from having their claims dealt with that way.  Those are particularly clients who make allegations of very serious physical and/or sexual abuse by staff members (which will include foster parents and other caregivers).  For many clients, however, we would have grave concerns that you would be “selling yourselves short” to have your claim go through the “fast-track process”.  While we understand the desire to have your claim settled quickly, it will certainly be at a much lower level than we think you are entitled to. 

We will be in contact with further information.  In the meantime, this is as much detail as we can provide.  

Regards, Sonja & Team

Important note:
This newsletter is intended solely for the information of claimants. It is not, and is not intended as a substitute for, legal advice.