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Entitlement To Interest On Backpayed Erc

#1 User is offline   Kaos 

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Posted 25 January 2007 - 09:54 AM

Hi all,

Im new to this forum but NOT new to the hassles of dealing with ACC. Injured myself in 1988. Was on ERC for bits of the first 3 years then basically ignored by ACC for 9 years living on nothing.

Finally took them to Review 3 years ago and won 9 years of backpay.

I ASKED for interest at the time of the Review and was told by the Adjudicator that it did not apply.

Having read a few of the earlier posts it seems that there is a chance I AM entitled to it (which would be nice as it would pretty much double the settlement figure).

Can anyone tell me HOW they got their interest, if possible either quoting legislation, precedents (or their own cases IF privacy is not an issue)?

Or can anyone suggest a good lawyer whom I can seek advice off, in Auckland or ANY where? (Odds are I'd run the actual hearing myself as Ive found its cheaper).

THANKS

Kaos
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#2 User is offline   kiwiwine 

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Posted 25 January 2007 - 12:23 PM

:) :) :)

Phil Schmidt
Acc Specialist Lawyer
379 4986
High St
Auckland

He's very good - as others on forum will acknowledge, and is possibly the best in Auckland.
He won my ERC back and also quickly sorted out the Casemangler - who was refusing to give me interest on the backpay...

Good luck
Kiwiwine B)
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#3 Guest_Percy_*

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Posted 25 January 2007 - 04:15 PM

Kaos, it depends on the date of your payout.
Interest is not included in the Legislation prior I think to 2002.
Someone maybe able to correct me.
I did not get interest on mine as I was prior 1996
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#4 User is offline   doppelganger 

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Posted 25 January 2007 - 07:50 PM

for you percy out of the 1992 Act

72 PAYMENT OF INTEREST WHERE CORPORATION MAKES LATE PAYMENT OF COMPENSATION BASED ON WEEKLY EARNINGS
72 Where any payment of compensation based on weekly earnings to which a claimant is entitled is not paid by the Corporation within 1 month after the Corporation has received all information necessary to enable calculation of the payment, interest shall be paid on the amount payable by the Corporation at the rate for the time being prescribed by or for the purposes of section 87 of the Judicature Act 1908 from the date on which payment should have been made to the date on which it is made.
[S 72 amended by No 106 of 1996, s 24 and sch, by omitting "or exempt employer" wherever occurring after "the Corporation"; effective 2 September 1996.]



and Koas tye current legislation.

Interest on late payments of weekly compensation

114.Payment of interest when Corporation makes late payment of weekly compensation—

(1)The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment.

(2)The Corporation is liable to pay the interest—

(a)at the rate for the time being prescribed by, or for the purposes of, section 87 of the Judicature Act 1908; and

(b)from the date on which payment should have been made to the date on which it is made.

Cf 1998 No 114 s 101
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#5 Guest_mini_*

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Posted 26 January 2007 - 04:50 PM

Hi there

I am of the understanding that the date you ask for interest is the Act that will be used to determine when you receive it from.

It matters not that I was paid out using the 1992 ACt. It only matters that the 2001 Act was in vogue when I asked for interest, as that is the Act that was in when I got accepted for entitlement to weekly Compo.

Because I was on WINZ previous to being accepted for ACC then the information needed was WINZ information so that interest need not be paid.

The only way to be considered for interest now would be 'Payment outside the legislation'. I have yet to get this one rolling. Crossed fingers!!

Cheers Mini
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#6 User is offline   Spacecadet 

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Posted 16 February 2007 - 06:27 PM

Hi Mini
I do not think this is correct - although I will add the rider I have yet to find out!
My reading of the legislation (2001 Act) is that if ACC do not pay your entitlement within one month of having all the financial information from you, then interest is payable, from the time the first payment due that was not made. Someone please correct me if I am wrong?

As far as WINZ is concerned, you can obtain from IRD the amount you have received from WINZ and the amount of PAYE WINZ has paid on your behalf. Don't bother to ask WINZ - they don't even know how to find out. I have an accountant who has me on his books as my "tax agent". He simple logs on to the IRD website and can instantly print out how much I have received from WINZ and PAYE paid - all in less than one minute and for free.
Don't let ACC con you into thinking you have to wait until the information is provided from WINZ!
I intend to use these figures for repayment to WINZ of my invalids benefit. I would not believe any figure produced by ACC or WINZ! They are completely incompetent in this area (innumerate in fact), and cannot legally argue the issue with a chartered accountant.
The amount you have received from WINZ is not the amount you have actually received over a year divided by 52. Remember - while on a WINZ benefit you also receive allowances ie accommodation, disability, special etc. These are not recoverable.
In summary, get the figure from IRD and use this. Then ACC cannot argue!
Good luck
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#7 User is offline   Spacecadet 

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Posted 16 February 2007 - 07:48 PM

More for mini
The relevant section is as follows:

Section 114: Payment of interest when Corporation makes late payment of weekly compensation

(1)The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment.

(2)The Corporation is liable to pay the interest—

(a)at the rate for the time being prescribed by, or for the purposes of, section 87 of the Judicature Act 1908; and

(b)from the date on which payment should have been made to the date on which it is made.

The arguable issue being "When did the Corperation recieve all the information to calculate payment"
The solution here is to write to them. Dont expect ACC to go and look it up at IRD, event though information matching agreements exist and allow them to do so. c.f. how quickly they can react in you are working and on ACC!
Hope this helps
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#8 Guest_mini_*

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Posted 17 February 2007 - 09:24 AM

Thanks Spacecadet

Have already paid lawyer $8000 to lose interest case under section 114 Judge Beattie, and to look at "When Corporation had all information to calculate and make payment".

A Previous Review document shows that ACC held up gathering information after agreed 'decision' date, so that they did not have to pay 'interest' as they did not have all necessary information etc. I believe they ran out of time, so made so hotch potch excuses. Like having to look at 'cover' etc. Like the hold up on Blurbs case.

Judge Beattie didnt agree and because I didnt have paper application, (only verbal), asking if I was entitled to w/c four and half years previously, he wouldnt even listen to that arguement. Nothing on file to say I had made contact with ACC etc. So if it aint there it didnt happen!!!

Mind you I have read caselaw and seen that some Judges actually know what went on then, even without paperwork, (like people being told by ACC they would be better off on WINZ and sending them there for payment of benefit instead of giving them their rights, Judge Beattie again). Twenty two years backpay in that instance, but even that guy is having hellva job getting 'interest' even though Judge put in writing that he beleived him.

He will have to go "Cap in hand to HO for payment outside legislation" as well.

Another was Judge believing claimant was told to go away as he hadnt put in his tax returns he couldnt have ACC w/c. So he got backdated w/c and interest backdated for 10 years or so. Good old Judge Hole!!! A person with a bit of commonsence obviously.

In your post #8 you say that the non-taxable supplimentaries are not repayable. Could you expand of this a bit. I believe you are right, alas I signed the document WINZ sent me to repay the Net amount.

ACC took the Gross which was taxed at 40.2%, because of the size of my income that year. I know how the system works for each organisation and have my case (Just for overtaxing) at adjudication at the Tax Dept at the moment. This will set a prescident and hopefully allow a few others some extra income, if I win!!!

I have had ACC and WINZ both to Appeal level and got the big shove, however have documentation to sent to Minister of Social Development to show how our signature is collected by 'uninformed consent' and that if not signed, ACC in one instance is saying that the backdated monies cannot be paid and in another instance that WINZ has said that if not signed they will not send the figures to ACC so that we will not be paid. This is all highly illegally and if no one is going to beleive me or do anything about it at Court level, they I will go straight to the top. It is proof that the WINZ and ACC both are forcing us to sign the document for the non-taxable supplimentarys to be repaid to wINZ when they have no right to do such a thing.

Section 252 to reimburse the taxable main benefit has nothing to do with the supplimentary benefit.

I consider the Tax Dept is the only one who can do anything about changing this procedure and policy, but will let the world know as it is a breach of our Human Rights, the way the reimbursement takes place and we are overtaxed.

Dont get me wrong I do not have a problem paying back the Net amount that I was paid by WINZ, and I understand why you think the supplimenties are not repayable, however IMHO and with all my background in this area, I do not beleive any of the Reimbursement is taxable.

So I would be appreciative if you could elaborate further on your thoughts of the non taxables non being repayable.

I could even maybe put your thoughts into the 'letter to the minister'.

Don't know what good it will do any of the three of us included in the documentation to the Minister, but it is at least trying to get the Crown entities corrupt procedure sorted eh???

Cheers Mini
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#9 User is offline   gaffa09 

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Posted 17 February 2007 - 10:45 AM

Yes i read with interest but what can i add,

My meeting is in just 1 1/2 hours away with John Greene and one of the issues is just that.
I need the luck of to get this message accross
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#10 Guest_mini_*

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Posted 17 February 2007 - 01:27 PM

Hi NODRSL

Yes I am very interested and thankyou for your thoughful and oh soooo right reply.

I think everyone is quite as a genie is expected to jump out of a bottle and solve the problem. One person against one entity on their ownsome.

Your problem of non-taxable supplimentaries not being repayable needs to go to the High Court. As you say many of us have had it to the SSAA but get given the run around and not given any answers to our problems of 'authorisation' collected by theft and steath. (I called it that in their fairy SSAA as well).

I can assure you of two things:

1. If WINZ had not said the only wanted the Net amount, I would never have signed the paper.

2. If I had more money to take the three of them to the High Court collectivelly this would have been done. I am so sure about the repayments not being taxable and the collective nature of the 'agreement' between the three of them to enable the whole thing to take place.

Your are right it is a revenue gathering exercise, right from the moment ACC tell you to go away, you are not entitled, even though in my case I had had operations etc under their 'cover'. This can clearly been seen by the massive amounts of extra money ACC, and IRD can claw back from us. Mind I say 'Extra, not what they would have had if we had been given our entitlement of w/c or not had it taken away from us unlawfully.

I assure you with the action I am taking against IRD as the main 'player', I am about as popular as a 'snake in a brothel'!! But I think with the action being taken at the moment from the Gaffa's and the Warrens etc, the time has come to take the lid of the whole sleazy issue of Crown earning money from claimants with rightful entitlements to ACC.

The only wrong I have done is trust them.............and that is what is needed to allow them to rip us off. It is not the people at the front line, they are just the 'flunkies'. In fact, they don't have a clue what you are talking about when you question them. They are clearly kept in the dark and just doing what they are told. However, that only makes us attack the wrong people, to get it sorted.

In the meantime I have other worries, like IRP and all the other things you others have been through and tried hard to get sorted, only to end up with a huge headache, because it is certainly not easy to understand.

There will be a time when I am not so busy and can share my knowledge with you all, to make life easier.

I think you all for just being there, it is tremdous comfort to be able to chat to people about issues which they are fimiliar with. My family gets tired of my fight and quite frankly so do I, but I must soldier on as this issue has been four years in the making and will probably take the rest of this one, but I will die before I give up!! That is a promise!!!

Cheers from Mini (who is quite no longer)

Mini again

That was supposed to be 'thank you all'.

DRSL you got me going there for a moment, my fingers were flying so fast I made a typo!!! Hee Hee!!!!

Hi Al

Yes we fight very hard and sometimes silently to get justice, fairness and our right to have our correct entiltlements, including all of our monies owing.

Many of us cannot get 'interest' withough going cap in hand, because we have been on WINZ.

Don't waste time on the unfairness of it all, just concentrate on what you are owed and go for it.

We will hopefully stop the 'unfairness' by demanding our right to entitlement. The more going for it the more chance we stand of being treated fairly.

Good Luck to you all.
Mini
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#11 Guest_mini_*

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Posted 17 February 2007 - 05:08 PM

Al

I consider if one of us makes a break we will all collectively benefit, I hope.
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#12 User is offline   Spacecadet 

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Posted 17 February 2007 - 06:56 PM

Hi All
The relevant section in the Act is s 252 (4) [please all refer to this section in your copy of the Act]

All found it? Good - I shall continue.

This section contains a bit of gobbledygook referring to "excess benefits"
Correct my if I am wrong, but what I think they are referring to here is any means tested benefit i.e. Unemployment, Sickness, Invalids etc.
So - how do you determine how much benefit you have recived from WINZ in the last X number of years while you waited for ACC to process your claim (It does happen you know!)
a) You can write to WINZ and ask them. I tried this several times and the were unable to supply me with that information; either they were too incompetent to work it out, or, more likely they were too lazy to bother.
B) As a beneficiary, WINZ paid PAYE on your behalf. So, go to the IRD website, and in an instant is the amount you received net from WINZ, and something you will not find from any other source, the amount of PAYE WINZ paid on you behalf.

An important consideration here: My accountant tells me that, under NZ Tax regulations, PAYE is the responsibility of the employer; in the beneficiary’s case, WINZ. What this means is that any stuff up, underpayment, non payment etc. of PAYE is, in the first instance, the responsibility of the employer i.e. WINZ.
My advice here is that as it is not your responsibility, so act dumb and don’t get involved. Secondly, if during any given financial year you only earned wages or received a benefit and the PAYE has been paid (on you behalf by your employer) you most likely do not need to file a tax return. IRD will advise you if you need to file one – To cut down their workload, IRD, prefer that PAYE taxpayers do not file returns.

Now; the crucial point of this posting:

ACC,” in the helpful manner to which we have become accustomed” will frustrate your claim for back pay and interest payment, claiming they have not received all the information to determine the amount of your payment. Refer Section 114 of the Act, my posting # 9

I suggest two courses of action:

i) Write to ACC and ask them specifically what information they require? If they do not reply within one month you can assume nothing further, and file for a Review under section 134 (1) (B) Unreasonable delay to provide entitlements.

ii) If ACC reply they are still awaiting information from WINZ regarding the amount of repayment; I suggest you try the course of action suggested in (B). Go to the IRD website and print out the amount you have received net from WINZ, and the amount of PAYE WINZ has paid on you behalf, supply this information to ACC in a covering letter and await a response. If no payment has been received from ACC within one month (more than likely for long term claimants), under my interpretation of the Act (see posting # 9) you are now eligible for interest on all you back payments.

In my case this process is helped in that I have had a chartered accountant prepare a tax summary for me every year. This shows how much benefit I received from WINZ and how much PAYE WINZ paid on my behalf.

NOTE: In any repayment to WINZ from your ACC back payments, only repay the net amount shown on your tax summary. Don’t be conned into repaying the amount in full. Don’t accept any statement from WINZ as it would be no use as toilet paper. Don’t assume any responsibility for the taxation that has been paid or will be payable. Dont sign any forms or authorities. If in doubt, ask for it to be refered to a chartered accountant.

Let the argument begin!

I look forward to your postings.

This post has been edited by Spacecadet: 17 February 2007 - 07:19 PM

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#13 User is offline   doppelganger 

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Posted 17 February 2007 - 07:25 PM

If the ACC cut your entitlement then interest should be paid from that date as they had all information to pay you on that date the date the intitlement was cut.

this is especially true if no other income had been received.

If you come under the 72 Act your entitlement had to be paid with in the 28 days and no longer than a 28 day period.

.
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#14 Guest_mini_*

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Posted 17 February 2007 - 10:13 PM

Hi all

You guys are a worry honestly!!

Spacecadet

You are wrong when you say it is the employer who has to get the tax right in the first instance.

This is usually the most common approach by the IRD but if they find out you have underpaid they will simply make you responsible for the debt. Get your accountant to check section NC16 of the Income Tax Act 1994 and you will understand what I am saying. I am not saying it happens often but in this situation you have three Crown entities with an obvious 'agreement' to tax the reimbursements to WINZ in a certain way. No matter what their intention for treating us differently than every one else in this situation, you will have to be careful, you should realise you are responsible for your own tax, if IRD wish it to be that way.

Also ask your accountant to read Tax Information Bulletin Dec 2004 concerning reimbursements made back to employers and overpaid benefits.

You are correct that 252 only covers the 'income tested' benefit. The income tested benefit is commonly known as the main benefit or the taxed benefit.

This does not include the supplimentary benefits (non-taxable) that is why WINZ need you to sign for the repayment of that amount. ACC will not agree to repay it to wINZ unless they have a 'Notice to Deduct' issued under Section 89A of the SSA Act. That document makes it legal for ACC to deduct from your ACC income and return it to WINZ, but only with you signation on another piece of paper, that they make up themselves.

WINZ ask for the Net amount of both benefits, but they collect the tax for the taxable benefit back from IRD. They do not have to collect the tax back on the non-taxable part as we have not paid tax on it when we got it from WINZ. The end result of this transaction is that WINZ have received total reimbursement of every cent they have paid you and have collected more tax for IRD as well, on the supplimentarys.

The non-taxable supplimentarys are taxed at the highest tax rate, (depending on your backdated income), and the net monies deducted from your net income which means it has been treated as part of your gross weekly compensation backdated payment.

High Court case law states that the 'loss' to a crown entity when it is ripped off for benefit, (which their laws are written to prevent), does not include the tax, or in fact, any benefit that the fraudster would have been entitled too in the first instance. (Usually a lessor rate of benefit). This can mean that what was originally a $50,000 or $60,000 rip off can end up costing the fraudster only $15,000 - $20,000 in repayments to WINZ.

Do you now see how we are treated soooooo differently and we have done nothing wrong.........except trust the @@@@#####!!

Space cadet this and lots more is the information you are missing as the WINZ will not give you the information. I suggest this is because you are refusing to 'play their game'. They are notorisely difficult to get information from.

I suggest seriously that you be careful what you post here, as you may be giving people false hope or wrong information.

Although I do admit that I am mighty impressed with your second suggestion. Get the total monies paid to you from tax dept and use the figures from your returns to ACC. I do not see anything wrong with this as WINZ just ask for the net. AND there is more that is too involved to go into here.

From what you have told me, I would suggest you keep things a little quite for a while and diffinitely let us all know what is happening at a later date.

You have yet to learn how the three entities work policy procedure legislation yet and you need that to make the right decisions let alone lend advice to others.

As I said earlier I would not have signed for the repayment of the non-taxables if I knew ACC was going to tax it. I was not even given the opportunity to pay it from my non-taxable independence allowance, therefore avoiding the tax issue.

It is time to stop this absolute rip off, but it must be done properly with all bases covered.

Be careful out there and good luck
Mini
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#15 Guest_mini_*

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Posted 17 February 2007 - 10:26 PM

Doppel

That is why I said previously the date of your application for interest is the legislation that is used now to pay interest.

If you have had WINZ income, you are knackered. As it is usual to change from one form of payment to the other on the same day, and that means that ACC do not have WINZ information until after that day. The forward erc can be paid from that day as ACC has got all the information they need, to calculate and pay, but the backdated payment cannot be calculated as WINZ has still to give ACC the details of the payments made to you.

It is getting late and I may be making no sence at all.

Nite Nite
Mini
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#16 User is offline   stumbla 

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Posted 17 February 2007 - 11:36 PM

Hey kaos....Don't get sucked in to the whole what "date of injury/Act" ....what "cover/entitlement" - can of worms. http://www.accforum....?showtopic=3704

Best of, mate.

Stblr
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#17 User is offline   Spacecadet 

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Posted 18 February 2007 - 07:09 AM

Thanks for your input Mini – greatly appreciated.

The postings emphasise two issues

1: S114 “When the Corporation had all the Information to calculate and make payment”

2: The Corporation, in the helpful manner to which we have become accustomed” (i.e. FRUSTATION) will never admit to having all the information to calculate or make payment, be it you earnings over the previous 12 months, interest, or most contentiously WINZ repayments

What I have posted is a strategy for drawing the rats out of their hole – so you can hit them with a big stick.

If you are claiming back pay and interest, you must have a valid basis for you claim – otherwise they will charge you with fraud. The Corporation is very quick of the mark in doing this. However, by quickly obtaining the information from one of the triumphant (ACC, WINZ, IRD) you have a legitimate basis for quantifying you claim. You have provided the information required to calculate and make payment.

The responsibility then shifts to ACC and WINZ to produce documentation (which they already have, but won’t admit) to show that the figures are not quiet correct, and the correct figure should be ………

So, as the claimant you have achieved two things – you have provided a date in which the Corporation has all the information. Very important as, if payment is not made within in month, you qualify for payment of interest; and secondly you force ACC and WINZ to quickly produce the documents they are sitting on and claim they don’t have.

So, when you go to hit the rats with a big stick, you may miss and not kill them, but at least you are not locked into an eternal waiting game.
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Posted 18 February 2007 - 08:55 AM

No DRSL

Letter to the minister tomorrow on exactly the points you raise. And few more.

Two others input as well and all nicely wrapped. Showing exactly how we are treated and manipulated by WINZ. Would have been nice to put your one in as well. Never mind three, is enough for now to show it is not just me being treated this way. It is in the Public Interest and it is a Breach of our Human Rights.

Spacecadet

You are welcome and please don't think I am being bossy. I am simply concerned for your wellbeing.

Kaos will see now how WINZ information and INterest go hand in hand, so I hope he/she will have got something out of this little debate.

It is actually a bit of a drain on the purse to go through a solicotor and accountant, this is where you are lucky and as I say I have already been to solocitor for the interest and it cost me $8000 for nothing. There was a lot of interest involved as well and I only have 'cap in hand to Head Office to go for 'Wrongful Action' or as it is known now "Payment outside the legislation".

I agree your approach is unique and appears quite lawful etc. Hopefully you will be able to draw the big rats from the hole and do you best to ensure your complete entitlements. I do hope it works, honestly. Good luck to you.

stumbla
I am not missing you out. I just havent read your insert yet. But I will.

Cheers all
Mini
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Posted 18 February 2007 - 10:03 AM

No DrSL

Not ACC Minister mate. Dept of Social Development.

Thank for the insite into Jan Whites reply. 'Not official acc policy" eh?? What does she intend to do about it??

I have a person's documentation here that shows that they have been told by ACC that WINZ will not release the information to ACC until WINZ have signed authority from claimant. What is that if it is not a threat eh??? (Spacecadet has found a way around that! Good on him.)

Is that a threat from ACC or WINZ?? As we know it is both. No matter, it is still one of the three Crown entities involved in this 'little' agreement which disavantages us so much.

Like "I am big brother, I hold your purse strings very tightly and we will not give you your rightful money until you do as you are told you naughty person and don't expect to get all your monies, you would have received if we had not given you the heave ho illegally or not allowed you to have rightful entitlement in the first place, we want to hold onto some of your money, to give you a good beating for being injured in the first place".

Wonder how long they would keep that up considering they have "no official acc policy" to do it and they would have to pay 'interest' from the time it was available to them???

As you and I know we cannot stop ACC from repaying the Net amount of the "income-tested" benefit, however that does not mean ACC have to await the outcome of our signature before they do calculation, as the supplimentary income paid by WINZ is nothing to do with ACC until they have received a 'Notice to Deduct' under section 86A (sorry got it wrong last night). If we do not give our signature, the issue of the Notice to Deduct can only be done if you owe WINZ a Debt of the Net amount of Supplimentary and before that can be established they must go through a certain criteria.

Have they ever sent a Notice to Deduct to anyone for yours??

Spacecadet will be in the same situation as you, I think!! You two should get together. I don't mind helping as much as I can.

Stumbla

Yes now having read the insert you put up, I see what you mean.

Having worked in the area of law, I know the present Act is God with a few proviso's. These are the transistional provisions of the Act that leave previous Act sections and issues alive and doing well thank you very much.

These are the important bits your lawyer friend is missing. They are conveniently missed by a lot of people and if you are unaware of them they can cause you to miss a lot of your entitlements, or right of Review. I have been caught this way. Not being vigilant enough. $17,000. Enough to buy a new car, nearly!! Make one cry eh?? But thems the breaks we just have to put our mistakes behind us in some instances and soldier on. Especially if we cant afford to hire lawyers.

Cheers for now
Mini
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#20 User is offline   Spacecadet 

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Posted 18 February 2007 - 10:44 AM

Thanks Mini.

Keep being bossy - that way you may get what you are entitled.

I note with importance the post of Nodrsl and s 81 of the SSA.

Having had an accountant over my "lean years" with WINZ, and having filed tax returns under IR3/5 should make my argument with the Corporation somewhat interesting. In my volumes of correspondence with ACC I have establish that Corporation "financial expert" Mr Trotter appears to have little or no financial qualifications, cannot understand professionally prepared and audited accounts and is unaware of the provisions of the Companies Act.

And we have not yet even touched on the subject of backdated child support! Thats going to be a headache for all concerned!

Good luck with your letter
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