In 2016, an independent review by Miriam Dean QC recommended improvements to ACC’s dispute settlements.

Dean’s review was sparked by an Acclaim Otago report, of which the lead author was Warren Forster, detailing problems faced by claimants appealing decisions by the Accident Compensation Corporation, the Government’s no-fault insurer for accidents.

Changes were already afoot, Dean’s review said, ※especially with ACC’s new alternative dispute resolution process, which should go a considerable way towards meeting claimants’ concerns that their disputes are not genuinely heard; and reduce the number of reviews§.

Fast-forward to this week and Forster and ACC are locking horns again.

His Wellington-based company Connection and Navigation Service, which advocates for injured people disputing claim decisions, took a judicial review to the Wellington High Court, which was heard before Justice Karen Grau on Monday and Tuesday.

The company wants the court to force ACC to follow a policy that it ※prefers§ an alternative dispute resolution (ADR) to formal reviews.

Legal submissions for Forster’s company, prepared by barrister Tiho Mijatov and released to Newsroom by the court, said: ※The policy can reasonably be viewed as the culmination of a change in direction of travel by ACC since the Dean review, towards increasing willingness to use ADR to resolve ACC disputes.§

The corporation, meanwhile, said it retained ※complete discretion§ over whether to offer or agree to the use of ADR, and its approach was producing ※good outcomes for claimants§.

It’s worth remembering the people behind the claims are injured, and how ACC treats their claims is not only crucial to their health but their wallets, too, as decisions determine whether the injured have to pay for their own treatment. Court cases have shown the world of disputed claims can be Kafka-esque.

A claimant dissatisfied with ACC’s decision can request a formal review or appeal. But ACC and that person can also agree to the alternative process, ADR, involving an independent conciliator or mediator.

Connection and Navigation Service’s position is ACC changed its policy in about 2019 to say: ※We prefer to use ADR to resolve disputes if there was more than one possible outcome.§ (There are exceptions if the claim is being handled by the ＆remote claims unit’, and to avoid the process being abused by ※risky§ and ※vexatious§ clients.)

By stating that preference, the statement of claim said that meant ACC should use the alternative process in ※most scenarios§. Basically, if the customer opts for it, in the majority of cases the corporation should agree.

The policy is a ※mandatory relevant consideration§ ACC must consider, Mijatov said. ※ACC has unlawfully failed to follow its policy, has failed to take its policy into account, and breached a legitimate expectation that it would comply with its policy.§

Meanwhile, the corporation said its policy had remained largely unchanged since 2018, with only ※minor edits§ made in 2019. ※The ADR policy is a short, high-level internal document that was intended to be used by ACC staff as a guide,§ ACC’s lawyer, Chris Curran, of Russell McVeagh, said.

Curran dubbed Connection and Navigation Service’s arguments as ※surprising§, as they were ※solely based§ on a preambulatory preference to a policy, misunderstood as a mandatory pre-commitment. The operative part of the policy said claimants ※can [Curran’s emphasis] be invited to attend some form of ADR§.

A judgment against ACC would amount to an ※abdication of choice§, Curran said. ※It is a bedrock principle of public law that a public body cannot unlawfully fetter a statutory discretion by adopting and applying rigid policies that do not reflect the width of the discretion intended by Parliament.§

There were also battles over data.

ACC ※regularly chooses to depart from or to disregard its ADR policy§, the statement of claim said. ※Of about 125 requests since March 2024, ACC has declined to use ADR for all but 12 clients.§

However, Curran said those figures were ※flawed and grossly overstated§, and it had agreed to about 20 percent of applications - ※despite issues with the merits of some§.

According to Connection and Navigation Service, ADR provider Talk-Meet-Resolve (TMR), took an average of 20 working days to resolve claims, and had a satisfaction rate of 98 per cent. ※By contrast, cases that proceeded to formal review took an average of 184 to 205 days from the date of referral to the date of outcome.§

(Curran, of Russell McVeagh, said each request for alternative resolution by Connection and Navigation Service sought the services of TMR - ※a company owned by Mr Forster’s brother, and previously [part-] owned by Mr Forster himself§.)

ACC provided figures, meanwhile, for internal, ※early§ claim resolutions - used before a claim goes to formal review or ADR - between July 2023 and May 2024. It said 42 percent of ※total review outcomes§ were resolved using early resolution, with an average timeframe of 35 days. A further 31 percent of claims were resolved after engaging an ADR provider.

※Since this claim was signalled and then filed, there has been a sudden uptick in ACC taking the applicant’s cases to ADR.§

Legal submissions for Connection and Navigation Service

A striking element of the judicial review is the financial implications of the court’s decision.

Should Connection and Navigation Service win, ACC wasn’t ※resourced§ for such an interpretation of its policy, Curran said. It would need to spend up to $23 million to employ and train more staff, increase the number of ADR providers, and pay ※advocates§.

Mijatov countered: if the corporation was acting unlawfully, financial consequences were merely a consequence of the rule of law.

Forster’s company, meanwhile, would benefit financially from a favourable judgment.

Connection and Navigation Service’s statement of claim said: ※The applicant reasonably relied on ACC’s compliance with its ADR policy in commencing business, providing advocacy services to claimants using a business model dependent on a high uptake.§

(This reliance wasn’t reasonable, ACC said, as its interpretation was incorrect.)

Without higher uptake - ACC following its own policy, Forster would say - there was a risk his company ※will not be sustainable financially§.

Legal submissions by Curran said ACC supported the use of ADR providers, when appropriate, and regularly did so. In essence, he said ACC was being challenged for ※not referring review applications to an external ADR provider each and every time a claimant requests it§.

While there was a legitimate expectation public agencies should follow well-established, institutional practices, Curran said, Connection and Navigation Service was trying to cement a new practice of dictating the forum in which resolution was explored.

※ACC’s approach in practice to ADR has remained the same since resolution services was created in 2017, namely, that the use of ADR is discretionary.§

What does Connection and Navigation Service want? A court declaration stating ACC hasn’t acted in accordance with its policy, and an order directing it to do so. The corporation should then be made to identify all ※extant§ decisions in which ADR was declined and reconsider them, the company says.

Changes are already afoot, Mijatov claimed.

※Since this claim was signalled and then filed, there has been a sudden uptick in ACC taking the applicant’s cases to ADR,§ his legal submissions said.

(Curran said there was no evidence to substantiate the ※allegation of ACC’s motives§, and dismissed the data as ※limited and selective§.)

Mijatov said: ※The sudden change in approach merely serves to reinforce the need for the court’s supervision, to ensure a principled and consistent approach is taken by ACC to its own policy.§

Justice Grau reserved her decision.