[Warren Forster]

This is an interesting case, it is discussed in Personal Stories.

http://www.accforum.org/forums/index.php?s...ic=5372&hl=


ACC owes Mr Langdon nearly $50,000. This is weekly compensation from over 5 years ago...

They have not paid him any of this entitlement because WINZ cannot work out how much they want... The Amount of reimbursement has changed several times and varies by many thousands of Dollars.

THE ISSUE BEFORE THE COURT

The Issue which was taken to the court is set out below:


"The Issue in this matter is a matter of law regarding the payment of an entitlement to weekly compensation. The issue here is not the amount of entitlment (this matter has been addressed with previous legal action) it is the payment of that entitlement"

"Mr Langdon is seeking the court to determine as a matter of law whether ACC must pay the entitlement to Mr Langdon or whether ACC can continue indefinitely to withhold the payment"


The court did suggest that:

[27] For the record it should be noted that shortly before the hearing of this appeal the Technical Claims Manager of the Respondent had indicated that, providing WINZ could confirm that the reimbursement amount was unlikely to increase from that it had previously calculated, then the Corporation would retain that amount and pay the appellant the balance. This is sensible and probably should have been considered as an interim measure sooner.
...

[30] The court makes the observation that the proposal mooted by the respondent's Claims Manager in her memorandum of 27 June 2007, ought to be implemented without delay, if indeed it has not already been implemented, as the continued retention of the gross sum is clearly not in accord with the spirit of the Act.


The Point of law surrounds the meaning of S. 252 and repaying WINZ. It would appear that the matter of law as it was brought to the Court is sucessful in a round about way as the court supported the submission that it was against the spirit of the Act to withhold the full amount, and agreed that part of the amount be repaid. And in fact commented that it should have been paid some time ago.

As it is a Matter of Law, Mr Langdon is entitled to Appeal this decision to the High Court.

I hope that clarifies what the appeal was about and although the Appeal was dismissed, clearly the court supports the notion that the payment of at least the unchallenged part of the entitlement should be forthcoming.

Regards

Warren

Attached File(s)

•  Langdon_v_ACC_162_2007.pdf (221.5K)
  Number of downloads: 19

[anonymousey]

Thanks Warren and Alan

They have not paid him any of this entitlement because WINZ cannot work out how much they want... The Amount of reimbursement has changed several times and varies by many thousands of Dollars

I have a friend who is still waiting for both WINZ and ACC to properly determine entitlements afaik etc Sadly it seems the calculations of both WINZ and ACC monies - and which agency is underpaying and who is overpaying and who is liable for what ... well basically that too seemed to keep changing many times

I think some alleged debt was established by WINZ then but instead of clarifying this with their ACC counterparts and vice versa regarding this - well looks like it is much much easier in NZ to convict an invalid for fraud instead imho

ps I would say she was still being underpaid by both Agencies at many times and words still fail me when I reflect on her experiences

[Alan Thomas]

It all the ingredients of the formula are not present then the calculation cannot be made. In addition when legislation calls for a sequence to occur then those matters must occur in sequence. The intention of legislation to achieve what is set out obviously takes precedent over the meaning of discreet words.

The bottom line principal is that when the Corporation stuff up the claimant should not be disadvantaged. Then laws of tort all costs generated by the wrongdoer should be covered by the wrongdoer.

Confirmation of the ACC acting expediently is confirmed in my mind by the way in which they made a ridiculous attempt to settle the issue on the doorstep of the court.

I smell bureaucratic convenience being endorsed by the court.

[daveo99]

Hello Warren and Alan, could either of you please tell me where to find "Spirit of the Act". Is it written anywhere by any obscure chance? Anywhere at all? Thanks

[MadMac]

Hi everyone ...

As its all fair in love and war ...

Yet again caught between a rock and hard place ...

How about the ACC and WINZ staff responsible and accountable for managing the claim cease getting paid untill they get the shit sorted out and resolve all the issues ...

As a thought , maybe if the claim was managed more proffesional then these issues would be resolved ages ago.

[Spacecadet]

daveo99, on Jul 27 2007, 07:58 PM, said:

Hello Warren and Alan, could either of you please tell me where to find "Spirit of the Act". Is it written anywhere by any obscure chance? Anywhere at all? Thanks

The spirit of the Act is the ghost of Woodhouse coming back to haunt them.

[Warren Forster]

Hi Mini,

It is an interesting situation. One of the points I raised with the Court is that s. 252 (Repaying WINZ) is like s. 301 (Repaying Public Health) - it would appear from the meaning of the words that it was the intent of Parliament that the Public purse (WINZ, Ministry of Health) should not be left with the Burden when an Insurer or after 2001, ACC, should pay for this.

The point is that s. 252 is clearly not just designed for claimants to repay WINZ. It requires treatment costs etc, paid by WINZ to be funded by ACC.


ARE CLAIMANTS ENTITLEMENTS INALIENABLE OR CAN THEY BE TAKEN TO REPAY WINZ?

Nowhere in s. 252 does it state that the reimbursement to WINZ should be paid from a claimants entitlement to weekly compensation.

Such a concept has been "added" into the wording of the section by ACC and WINZ in an agreed policy on such.

It could not possibly have been the intent of Parliament that a claimants entitlement to Weekly Compensation sould be used to pay for a claimants entitlement to Treatment (which is what would be occuring if the interpretation prepared by the Corporation was used).

So, if the words "refunded from a claimants entitlement to weekly compensation" were inserted, this could only and should only related to repayment of the "income tested" benefit.

Even is such an interpretation is accepted, the repayment of the remaining benefits received should be made directly from the relevant ACC account and are not the responsibility of the Claimant.

[Warren Forster]

Hi No DRSL,

This is the reason for taking this review and appeal, the point being simply that What ACC wants to give WINZ/what WINZ wants from ACC is unlawful.

I think that most of us agree about what they are currently doing. Their policies and proceedures surrounding this are interesting, as are the personal circumstances of the people involved. However the High Court will not be interested in these. I.e. even if WINZ finally reviews that $24,000 that they are claiming, by law they cannot ask for any more than they already have got, but without meaning any disrespect to anyone, these are really sideline issues here because they don't relate to the matter of law (which is what the High Court will focus upon).

That is why the focus is on the Law.

As a matter of Law, they should not be able to do what they are doing. They have no authority to wait for WINZ to make a final decision before they make payments and this is one of the striking points to come out of the Langdon decision above.

WINZ has not raised a debt pursuant to the Social Security Act. There has been no "payment" and therefore no overpayment.

Although facts of cases are relevant here, in my opinion, the way to attack this is to focus on the Matter of Law.

It is simply a case of what does the law say. What we are asking the court to determine is "What does the law mean." What they are currently doing/have been doing for some time is interesting, but it does not affect the "LAW".

I hope that you understand what I mean here.

[Warren Forster]

Hi No DRSL and Mini

Any case law that is relevant to the matter of law would be appreciated and read, however as far as I am aware non of the case law specifically addresses the areas.

1. As the law stands, WINZ may pay you benefits, pursuant to s. 71 of the SSA, on the condition that if you get weekly compensation, you will have to repay the benefits. Unless you were paid benefits on such condition, in my oppinion, they do not have the authority to ask you to repay them.

EARNINGS REPLACEMENT
2. As far as I am aware, WINZ pays a number of benefits. Some act as a replacement of your earnings (Similar to weekly compensation). It may be reasonable that benefits like this are repaid from a claimants entitlement to weekly compensation (although as a matter of Law, I do not believe that this has to occur in every case, i.e. if ACC overpays you because of their mistake, you don't always have to pay it back, s. 249)I am also aware that there are issues here regarding taxation of this element of the weekly compensation.

ALL OTHER BENEFITS
3. As far as I am aware, WINZ also pays benefits, which are not directly a replacement of earnings. If ACC should of paid these, then it is reasonable that ACC should pay them, however the burden of such must rest with ACC, not the claimant. i.e. if a claimant was paid $5,000 in payments that are not "replacement of earnings," then ACC should pay this back from the "Earners Account, Motor Vehicle Account, or no Earners Account," not from your backdated weekly compensation. (hence Taxation issues do not arrise here).



The point being that ACC still has to repay WINZ supplementary benefits etc, but it does not have to pay them out of your entitlement to weekly compensation.

[Warren Forster]

Hi Mini,

Noone expects two sources of income, however s. 249 is in place to ensure that ACC don't keep making mistakes in bad faith. We cannot really argue that s. 252 applies in some cases and not in others. The point here is that clearly, there is a problem in the law and that the SSA and IPRC Act should be amended to fix the problem. Then, there would clarity and fairness.

S. 252 shouldn't be used as a basis for withholding payments indefinitely. That is what it is all about.

The point of law that is being argued is that s. 252 does not state that the repayment must be made from a claimants entitlements to weekly compensation because such entitlements are inalienable.

s. 252 merely requires ACC to repay WINZ. Simple as that. ACC are reading into this that it must be repaid from weekly compensation, which is wrong in law.

Legally, if WINZ didn't provide the entitlement based on a s. 71 (SSA) agreement, then they have no recourse to ask for it back. Putting this point aside for a moment and assuming that the courts will overlook this, we must examine WINZ remedy. WINZ can calculate a debt and raise this pursuant to s. 86 of the SSA and s. 123 of the IPRC Act. Then such would be repaid from a claimants entitlement to weekly compensation.

[anonymousey]

Warren Forster, on Jul 28 2007, 12:36 PM, said:

ALL OTHER BENEFITS
3. As far as I am aware, WINZ also pays benefits, which are not directly a replacement of earnings. If ACC should of paid these, then it is reasonable that ACC should pay them, however the burden of such must rest with ACC, not the claimant. i.e. if a claimant was paid $5,000 in payments that are not "replacement of earnings," then ACC should pay this back from the "Earners Account, Motor Vehicle Account, or no Earners Account," not from your backdated weekly compensation. (hence Taxation issues do not arrise here).

The point being that ACC still has to repay WINZ supplementary benefits etc, but it does not have to pay them out of your entitlement to weekly compensation.

I am not sure if this issue is perhaps becoming more complex and a much more nasty Goliath strategy now sadly Warren

My current WINZ experience appears to be that SUPPLEMENTARY BENEFITS are being obstructed by my WINZ casemanager!! I guess if they refuse all nontaxable assistance to me as they know I have an ACC dispute and claim background - then this will ensure that when or if I survive and it ever comes time to recovery from ERCbackpayments .... well there is nothing to recover except the SB or IB component etc

They will automatically get their taxable part of course under Section 252 - but as far as everything else like disability allowance, transport costs and any special needs grants - this is no longer a problem as creating a retrospective debt under Section 81 will only relate to accomodation supplements perhaps?? I guess that WINZ will have to keep Section 81 to provide a clawback for ACC clients who are forced into emergency relocation situations as it may be too hard to recover that cost from the Police services etc

I basically see WINZ as now doing the dirty work for ACC ie an injured vulnerable person being denied treatment and help twice... plus now all emergency special benefits being denied on top as well!!

I am not sure though if this will become more widespread now that WINZ appear to be reviewing their sickness and invalid beneficiaries though??

I also agree with NoDRSL about his statement that "the winz are worse than drsl in the BRC and appeal systems" and I would also include the MAT when one includes the magical 5 minute medical assessments and all the reports which are denied within etc

With the attitude of some of the WINZ casemanagers I am actually suprised they are not punishing us even more by demanding we give them 100% of our payment from ACC as well to pay their wages etc

Last but not least, it may be that WINZ should be able to calculate a debt figure for ACC - but reckon thats only theory imho Obtaining a complete copy of my personal file last year showed me that sadly that they are just as adept at losing information and claim forms or creating bogus ones, plus corrupting facts ad nauseum, and blah blah

[Spacecadet]

My 2 cents worth on Other Benefits:

In addition to receiving an unemployment / sickness / invalid benefit i.e "income tested taxable benefits", a WINZ beneficiary may also receive the following non taxable allowances:

1) Accommodation supplement. To qualify for this allowance there is a formula which includes ones taxable income in relation to housing costs. The maximum amount is fixed dependant upon location.

2) Disability allowance: This allowance is available to low income earners to meet actual ongoing medical costs. It is directly related to ones actual medical costs and is payable to a maximum of $56 /week.

3) Special benefit. Only available to those who applied for it prior to April 2006. This is a calculation for low income earners to cover any top up required for the accommodation allowance and disability allowance.

Important Note: All of these non taxable allowances are available to all low income earners - not just WINZ beneficiaries. e.g. one can be in a low paid or part time job, or be on ERC and if ones income is low enough, one would be eligible for these allowances.

Now: In the case where a WINZ beneficiary recieved backdated ERC.

a ) WINZ can reclaim taxable benefits recieved by the claimant under section 252. Black and white.

b ) IRD treat the balance of the backdated ERC as income in the year it was recieved.

Hence: The claimant's taxable income for the years gone by HAS NOT CHANGED! The numbers are still the same. All that has happened is that the payment the claimant recieved from WINZ in past years has been substituted by a payment from ACC.

Thus, the claimant is still eligible for the non taxable allowances received in the years gone by. Nothing has changed. Thus WINZ cannot legally seek repayment of these allowances (But they are doing so!!!)

In summary, under s252 all ACC can repay WINZ is the amount of unemployment / sickness / invalids benefit recieved by the claimant. Not the non taxable allowances.

Which leads onto the next issue. "Amount recieved by the claimant". The claimant receives a nett amount - not gross - thus the PAYE WINZ paid to IRD should not be deducted?

I hope the forum members can follow this logic - because it appears to be beyond the comprehension of WINZ (unless they are being fraudulent?)

[Spacecadet]

NoDrsl, on Jul 28 2007, 03:32 PM, said:

spacecadet,
agree with you. where winz are guilty is using s81 SSA to RETROSPECTIVELY reassess your benefit entitlements in previous years, hence creating a false debt and transferring money to the crown. this means that theres no incentive for the crown / acc to stop shafting claimants to winz. try and work this out by means of, for each year in the last 10 years, how much in each year has acc funnelled into investments? compare to the change in acc's claimed liability and exit of the tail.

and this is FRAUD by WINZ and ACC!

[anonymousey]

Spacecadet, on Jul 28 2007, 02:44 PM, said:

My 2 cents worth on other benefits:

In addition to receiving an unemployment / sickness / invalid benefit i.e "income tested taxable benefits", a beneficiary may also receive the following non taxable allowances

I totally agree spacecadet with your logic ...but I think the key word here sadly is MAY perhaps??

I have learned most of those non taxable allowances you detailed well above are completely discretionary - but some of the problem is not so much meeting criteria or evidence verification - but thats it much more about the WINZ CM gatekeepers perhaps?? Get on the wrong side of them and a person may then be very unlikely to see any help or basic rights perhaps??

I muse now for my own peace of mind that the reason I am sturggling is perhaps if an ACC claimant has a previous *reputation* for causing this type of trouble or difficulty for a poor public servant [prior to becoming a WINZ beneficiary or during the period of WINZ income] .. then I guess its much easier for them to use their frontline staff and useless appeal processes to overwhelm ie where ACC fail in gaslighting winz may have a chance etc

I would also go further now spacecadet and say that all the recoverable allowances as well as nonrecoverable special needs grants can also being denied as part of this hidden oppression tactic etc Receipts and evidence then from additional outside state and community agencies involved in any crisis situation can then be meaningless as well imho

[Spacecadet]

Anonymousy

Yes I know where you are coming from - been there too - and to the SSAA!

a ) The accommodation allowance: This is not discretionary. Meet the criteria - must be paid.

b ) Disability allowance: Not so clear - here the poor beneficiary is reliant upon the goodwill of their WINZ case manger in how it is calculated - but again - should not be discretionary.

c ) Special benefit. No longer available - but this truly was discretionary.

Take no prisoners is my motto. I have seen too many beneficiaries denied their rightful entitlement.

[daveo99]

Whatever happens, everyone keep on going, the high court will soon clear it up, you are doing

it the hard way (precedent setting) but someone's got to. Keep those spirits up!!!