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Making decisions as punishments. This is a part of a decision in which ACC Lawyer is usung a decision a

#1 User is offline   doppelganger 

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Posted 10 July 2018 - 09:29 PM

This is part of a decision in which ACC are using a decision as a form of punishment because he did not supply some information.

Quote

28. Outside that calculation, I find that there is no basis, on the evidence that I have heard or read, that would entitle any greater sum to be considered an overpayment. The appellant was at all times incapacitated and thereby had an entitlement to weekly compensation. That entitlement could only be withdrawn if there was medical certification that the appellant was no longer incapacitated, or if the appellant found alternative employment which provided an income which was greater than or equal to the amount of his pre-accident employment income or thirdly, if it be determined that the appellant had a capacity for work. I know of no statutory provision in the Act which says that entitlements can be withdrawn as some form of punishment for breaching the provisions of the Act in the manner contended for by the respondent.


So if ACC are making decisions because claimants are not applying to there policy then they make decisions to stop entitlements.

If this has been going on for a long time then ACC will have to revise a number of decision.
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#2 User is offline   anonymousey 

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Posted 10 July 2018 - 11:38 PM

There is some interesting material in this older judgement doppel :)

IMHO the sticky bit here may be *if it be determined that the appellant had a capacity for work* perhaps?
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#3 User is offline   anonymousey 

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Posted 11 July 2018 - 12:23 AM

Just for another POV doppel ...I came across the following information buried in the NZLII archives which shows a few extra factors on a different but with some similarities or a gray area perhaps??


[42] While the appellant may well see the recovery of the debt as an additional punishment it is not so much a punishment as a “putting right” by repaying money unlawfully taken. Again the provisions of s.38(2) of the Sentencing Act emphasises the difference between punishment or reparation and the right of a victim to recover their losses. A prison sentence is about punishment and deterrence for wrong doing. Recovery of an overpayment is one of the economic consequences of the appellant's actions. Moreover we are not persuaded that the appellant's sentence was increased as a result of her inability to repay the debt. The sentence imposed on her was a reflection of the level of offending. Particularly given the provisions of s.38(2) of the Sentencing Act 2002 we do not think the provisions of s.26(2) of the Bill of Rights prevent the Chief Executive from exercising his powers under the Social Security Act 1964 to recover a debt owed to the Crown.


As this is a later NZ decision than the one you referenced doppel ...I am not sure if there have been others buried in the SSA archives which may be relevant to ACC decisionmaking or caselaw eg not notifying about working while supposedly on Supported Living Payment + abatement issues etc
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#4 User is offline   anonymousey 

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Posted 11 July 2018 - 12:46 AM

Sorry for going offtopic a bit doppel ...but I am loosely exploring the issues of punishment with regards to claimant wrongdoing in my other readings ... &or any possible financial entitlements therein etc

This decision is also within the NZLII archives

[33] We think it more likely than not that Mr explained to the appellant that she would have to deal with the fines herself as the were unable to deal with this issue and that the appellant then neglected to deal with the issue. As Mr noted the fines were imposed as punishment for breaking the law. The appellant appears to have broken the law repeatedly in a relatively short space of time. The clamping and removal of the appellant’s car was a consequence of not taking responsible measures to deal with the issues raised by the fines.

[34] Moreover as Mr submits it would be inappropriate for the punishment imposed by the Court to be varied by the Ministry of Social Development by making an advance to the appellant so that she could pay off her fines at a lower rate or otherwise avoid the consequences of her own failure to deal with the matter.


At the moment I am unable to explain why WINZ would be currently paying some Court Fines for lawbreakers. Unfortunately it seems that there is some folks bragging about this loophole in order to avoid consequences by getting extra entitlements via a weekly extra monies ...this is just incomprehensible to me. Especially when MSD are clearly refusing to do a lump sum advance in this decison for another person with higher needs from the care of children etc

IMHO it is this kind of disparity which I believe should be discouraged ie treat everyone fairly etc
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#5 User is offline   anonymousey 

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Posted 11 July 2018 - 01:23 AM

I am calling it a night now doppel ... but there are two decisons within NZLII archives relating to a pair of fraudsters who may have had WINZ and ACC entitlements during a time of undeclared income. In addition to imprisonment and forfeiture of all their assets ... the issue of overpayments versus income entitlements was raised too ...


Judge Moran, cancelled the reparation orders when imposing the forfeitures saying,

“In general terms it is the public purse that benefits from the forfeiture orders and the reparation orders and it would be inappropriate and unjust for the public purse to receive the double benefit of both forfeiture and reparation.
While the Accident Compensation Corporation and the Department of Social Welfare might wish to receive its share of the proceeds of forfeiture, I can find no authority in the Act for my directing that the proceeds of sale or forfeited property should be applied to satisfaction of reparation orders.”


It looks like this decison which came out the year after the one you referenced is due to these weaknesses in NZ Law with regards to confiscations and debt recovery law etc

[28] Following this decision it was discovered that any amount recovered by the Crown under the Proceeds of Crimes Act could not be transferred to the Ministry of Social Development and offset against benefit debt. A decision was made by an officer of the Department that the full amount of $135,362.41 would need to be recovered directly from the appellants. The Chief Executive was entitled to correct the mistake made as a result of this earlier misunderstanding. His decision in that regard was not an attempt to alter the decision of the Benefits Review Committee, but was in effect a new decision.

[29] The question is whether or not this new decision can be said to have been confirmed or varied by a Benefits Review Committee thereby establishing jurisdiction for this Authority to consider an appeal. In this case it has always been the intention of the Chief Executive to recover the full amount of overpayment; however the sources from which it can be recovered have changed. It will often be the case that there will be changes in the amount sought to be recovered between a Benefits Review Committee decision and a hearing by the Appeal Authority. It would be administratively impractical if all of those decisions were required to be referred back to a Benefits Review Committee before an appeal could proceed. Whether or not as a result of such variations the requirements that the appeal before the Authority is a matter which has been considered by the Benefits Review Committee is satisfied will always be an issue of fact and degree in each case.


The other main thing I spotted in these wee hours is that the burden of proof about remaining entitled to income payments during the specific time of dispute &or overpayments .. was placed on the fraudsters after they were released from prison etc

[34] If the appellants wish to continue to dispute the actual amounts of the overpayment, they will need to satisfy both the Benefits Review Committee and if necessary, this Authority, that the issue has not previously been decided by a Court. Moreover, if the appellants are able to persuade either the Benefits Review Committee or this Authority that the issue of the amount of the overpayment has not already been decided, in the particular circumstances of the case the onus will be on the appellants to demonstrate that they were eligible for benefit at some period or periods during the period of the overpayment.

[35] If this matter returns to the Authority, the Authority will require detailed written submissions and statements of evidence relating to the periods in which the appellants claim they remained entitled to a benefit.


ttfn :)
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#6 User is offline   Alan Thomas 

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Posted 11 July 2018 - 11:56 AM

In all civilised countries the legal structure is broken into civil proceedings and criminal proceedings.

With regards to the ACC they are only permitted to involve themselves with civil proceedings. If they consider there has been a crime against society then they must go to the police for criminal proceedings to take place. It would be unlawful for ACC staff to entertain the notion that they can make a decision with regards to a criminal matter. It is only criminal activity that can result in a punishment of any sort.

The old saying that power corrupts and absolute power corrupts absolutely applies with the ACC it as much as when a person is injured in New Zealand in the minds eye of the ACC they come under the power of the ACC Corporation and therefore to their way of thinking are subservient to the staff of the ACC.

This is diametrically opposed to reality whereby the ACC staff are government servants required to be a servants of the injured. So should we not be looking at how to empower the injured.


The ACC are so worried about this that when they find individual claimants threatening criminal prosecutions against those injured All the injured did not demonstrate obeisance/obedience they collectively attack in the manner that we have seen an numerous cases. When we trace the various mechanisms of this attack will find it is carried out in a rather traditional bureaucratic thuggish type style even incorporating other government departments cooperation. This illegal use of bureaucracy is a most serious crime but also notoriously difficult to hone in on the collection of individuals that have committed the crime against the injured.

Sadly all too frequently we do see a syndrome whereby fellow injured suck up to those who abuse power out of the and attack their peers more viciously than the bureaucracy itself. This weak minded reaction is traced back throughout history and shows up the worst of mankind yet righteousness prevails unchanged.

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#7 User is offline   doppelganger 

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Posted 11 July 2018 - 12:49 PM

View Postanonymousey, on 10 July 2018 - 11:38 PM, said:

There is some interesting material in this older judgement doppel :)/>

IMHO the sticky bit here may be *if it be determined that the appellant had a capacity for work* perhaps?



The sticking point is that he signed medical certificated stating that he would inform ACC if he was working. At the time of the certificate he did not work but in between those certificates he did do some earnings.

It be interesting as he did a training course so he could do some work and there will be expenses that will be now due then as not ACC not paying and reaping the benefit ACC would be then in for fraud.
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#8 User is offline   Alan Thomas 

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Posted 11 July 2018 - 02:13 PM

View Postdoppelganger, on 11 July 2018 - 12:49 PM, said:

The sticking point is that he signed medical certificated stating that he would inform ACC if he was working. At the time of the certificate he did not work but in between those certificates he did do some earnings.

It be interesting as he did a training course so he could do some work and there will be expenses that will be now due then as not ACC not paying and reaping the benefit ACC would be then in for fraud.


Please describe an reason why you feel that fraud could be involved in this type of situation? I am missing the point that you are making.
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#9 User is offline   anonymousey 

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Posted 11 July 2018 - 02:52 PM

View Postanonymousey, on 11 July 2018 - 12:46 AM, said:

Sorry for going offtopic a bit doppel ...but I am loosely exploring the issues of punishment with regards to claimant wrongdoing in my other readings ... &or any possible financial entitlements therein etc

This decision is also within the NZLII archives

[33] We think it more likely than not that Mr explained to the appellant that she would have to deal with the fines herself as the were unable to deal with this issue and that the appellant then neglected to deal with the issue. As Mr noted the fines were imposed as punishment for breaking the law. The appellant appears to have broken the law repeatedly in a relatively short space of time. The clamping and removal of the appellant’s car was a consequence of not taking responsible measures to deal with the issues raised by the fines.

[34] Moreover as Mr submits it would be inappropriate for the punishment imposed by the Court to be varied by the Ministry of Social Development by making an advance to the appellant so that she could pay off her fines at a lower rate or otherwise avoid the consequences of her own failure to deal with the matter.


At the moment I am unable to explain why WINZ would be currently paying some Court Fines for lawbreakers. Unfortunately it seems that there is some folks bragging about this loophole in order to avoid consequences by getting extra entitlements via a weekly extra monies ...this is just incomprehensible to me. Especially when MSD are clearly refusing to do a lump sum advance in this decison for another person with higher needs from the care of children etc

IMHO it is this kind of disparity which I believe should be discouraged ie treat everyone fairly etc



I forgot to mention that in this situation, the mother denied an advance for her court fines would still have repaid WINZ.


I also located one of the statements which has been made previously in this forum in relation to ... the Crown paying for court fines ...

Alan Thomas stated,

<<" Stepping back from the situation Home Detention makes absolutely no difference to a financially impoverished person who can't go anywhere or do anything because they can't afford to while the same time being to injured and disabled to go up much anyway. In fact while on home detention my car clocked up almost double the amount of kilometres during that time period. As for payment of the additional security ACC claim to need for three months,, while yet to be contested, the fact remains that social welfare pay a minimum standard of living and have to raise the beneficiary income to meet those costs of the fine. That seems to be one of the benefits of living right on the poverty line set by social welfare. So you see the payments of ACC security makes absolutely no difference.">>


I find this clear disparity where a mother seeks financial assistance for traffic fines and is prepared to pay it back being DENIED ... as utterly different to a person with criminal convictions for violence having their fines paid in full by the Crown ...is just utterly incomprehensible to me :wacko:

ps I am also not sure why Alan is insinuating here that he travelled so extensively when on home detention either :unsure:
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#10 User is online   MINI 

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Posted 15 July 2018 - 10:15 AM

View Postanonymousey, on 11 July 2018 - 02:52 PM, said:

I forgot to mention that in this situation, the mother denied an advance for her court fines would still have repaid WINZ.


I also located one of the statements which has been made previously in this forum in relation to ... the Crown paying for court fines ...

Alan Thomas stated,

<<" Stepping back from the situation Home Detention makes absolutely no difference to a financially impoverished person who can't go anywhere or do anything because they can't afford to while the same time being to injured and disabled to go up much anyway. In fact while on home detention my car clocked up almost double the amount of kilometres during that time period. As for payment of the additional security ACC claim to need for three months,, while yet to be contested, the fact remains that social welfare pay a minimum standard of living and have to raise the beneficiary income to meet those costs of the fine. That seems to be one of the benefits of living right on the poverty line set by social welfare. So you see the payments of ACC security makes absolutely no difference.">>


I find this clear disparity where a mother seeks financial assistance for traffic fines and is prepared to pay it back being DENIED ... as utterly different to a person with criminal convictions for violence having their fines paid in full by the Crown ...is just utterly incomprehensible to me :wacko:/>

ps I am also not sure why Alan is insinuating here that he travelled so extensively when on home detention either :unsure:/>


Quite rightly too Anonomousey. Thomas says in one breathe one cannot get out to do anything and in the next he says his car did mega klms while on home detention. Do WINZ pay you more so you can afford to go out and about on home detention.

Oh one thing cannot be forgotten where Mr Thomas is concerned: He will be on old age pension soon if not now, and the income is better than on actual WINZ payments for under 65.

Mini
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#11 User is offline   anonymousey 

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Posted 15 July 2018 - 06:03 PM

View PostMINI, on 15 July 2018 - 10:15 AM, said:

Quite rightly too Anonomousey. Thomas says in one breathe one cannot get out to do anything and in the next he says his car did mega klms while on home detention. Do WINZ pay you more so you can afford to go out and about on home detention.

Oh one thing cannot be forgotten where Mr Thomas is concerned: He will be on old age pension soon if not now, and the income is better than on actual WINZ payments for under 65.

Mini


I have given up on a lot of the real lifestyle commentary being blagged by Alan. I only know that Alan is on a lot more weekly money than me Mini &or I wont be on Super for a while yet etc I also realise that he is a convicted criminal whereas I am not etc. I also have seen Alan discuss extensive medical attention & supports too whereas many of the injured I know are suffering and languishing on waiting lists etc

Unfortunately I have seen that with WINZ sometimes these sorts of people get far more entitlements than others as IMHO they are being pacified etc
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