how about we let the Police decide what is criminal harassment and what is not....
rex has mentioned that filthy word again within his posting...and you are sanctioning this???
did you report it???
calling you out on nonfactual and untruthful behaviour is NOT criminal harassment
members of a "so called tag team" who HAVE BEEN criminally harassed as a result of your endeavours to have your name cleared after 2 criminal convictions, may well have established a Burden of Proof already....
and....
just to reiterate:
http://www.dol.govt....-justice_01.asp
Previous Section
Purpose
9 This briefing responds to your request to:
investigate strengthening the ‘repugnant to justice’ provisions in the Injury Prevention, Rehabilitation, and Compensation Act 2001 (IPRC Act)
examine whether ACC should decide who should be disentitled and what disentitlements should apply.
Analysis
Issue
10 There is a public perception that criminals should not be able to receive any entitlements from ACC for injuries sustained while committing a crime.
Size of problem
11 ACC does not routinely collect information on either the number of claims or the cost of entitlements paid to former prisoners who sustained a personal injury while committing a crime.
12 This means that there is no information currently available on costs or how many claims are involved with:
rehabilitation (both social and vocational)
weekly compensation
lump sum compensation for permanent impairment
entitlements arising from fatal injuries
where the personal injury was sustained while the claimant was committing a crime for which they were subsequently imprisoned.
13 Information from the Ministry of Justice shows that in 2005 10,320 court cases resulted in custodial sentences. Approximately 30 percent of these related to property offences, 20 percent to traffic offences, 25 percent to violent offences, and the remainder related to drug, “against good order” and other miscellaneous offences. By comparison, for all of New Zealand there were 114,618 entitlement claims made to ACC during 2004/05. On a population basis, the numbers of prisoners injured while committing a crime is likely to be very small.
14 Since 1992 ACC has made 11 applications seeking disentitlements to the District Court. Of these one was struck out, one was considered not repugnant to justice, and the remaining cases had various levels of disentitlement upheld. ACC is not currently seeking to apply section 122 to any claimants through the Court system. The cost of making such an application ranges from $2,000 to $8,000.
Current situation
Entitlements all ACC claimants may receive are set out in Schedule 1 of the IPRC Act. These are:
treatment
rehabilitation (both social and vocational)
weekly compensation
lump sum compensation for permanent impairment
entitlements arising from fatal injuries.
16 Section 122 of the Act allows ACC to apply to the District Court to deny entitlements wholly or in part to previously imprisoned offenders, where it would be ‘repugnant to justice’ for the claimant to receive the entitlements.
17 Section 121 of the IPRC Act requires ACC not to make weekly compensation payments to any prisoners, nor may prisoners benefit from any entitlements arising from fatal injuries (for instance if the prisoner was eligible for a survivor’s grant or weekly compensation to a surviving spouse or partner). Also, ACC is not required to make payments to prisoners or assess them for lump sum compensation. Prisoners are eligible to receive treatment. This section applies irrespective of whether or not the ACC claim is related to the offence the prisoner is imprisoned for. ACC and the Department of Corrections perform a weekly data match to indentify these claimants, and if necessary suspend entitlements.
18 ACC operational policy (see Appendix 1) details what actions ACC takes on criminal disentitlement. It lists the ways ACC may become aware that a claimant’s injury was sustained while committing a crime. These include notification from the NZ Police, the Department of Corrections, the Ministry of Justice, a prison institution, newspaper, word of mouth, a change of claimant address, the claimant’s solicitor, the claimant’s employer, or the claimant. There are often delays between the date of injury and the date of sentencing, during which time the claimant may be receiving ACC entitlements.
Determining disentitlement(s)
In determining whether to deny entitlements, under section 122(3) the District Court must use the following non-limiting, comprehensive criteria:
the harm caused by the claimant’s offence; and
the gravity of the offence; and
the claimant’s personal culpability for the offence; and
the extent of other penalties the claimant has already suffered because of the offence; and
the claimant’s personal circumstances; and
the nature of the entitlement; and
the strength of the claimant’s need for the entitlement; and
the resources the claimant has to meet that need.
20 These principles are drawn from ACC v Curtis; ACC v McKee [1993] 3 NZLR 558; [1993] NZAR 342 in which the courts decided under the 1982 Act in favour of paying limited compensation and providing rehabilitation services to claimants who had been seriously injured during the course of committing criminal offences.
No-fault Scheme
21 The sections on disentitlement in the IPRC Act are exceptions to the principles that underlie the ACC Scheme. The ACC Scheme provides, in exchange for the loss of the right to sue, a comprehensive, no fault compensation scheme for New Zealanders. It shifted claimants from a fault and tort-based court system to one where the personal injury, and not the circumstances surrounding the injury, determines entitlements.
Who should decide on disentitlement?
22 In 1982 the ACC legislation allowed ACC to deny entitlements to claimants whose personal injury had occurred as part of an offence for which they had been imprisoned. There was no legislated provision before this.
23 The 1982 ‘repugnant to justice’ provision gave the decision-making role to ACC, making ACC the initial judge in these decisions. ACC’s decisions were subject to review, and appeal to the Courts.
24 The decision-making role was moved in 1992 to the District Court. ACC’s decisions on disentitlement to payments that would be repugnant to justice were frequently challenged through the review process.
25 In their paper to you on “repugnance to justice” [ACC BP 09/20 Repugnancy to justice – personal injury suffered while committing a crime] ACC suggested that the decision-making role could be shifted back to ACC. This is likely to result in an increase in reviews from affected claimants and a consequential increase in costs. The existing problem, that ACC is unaware of which claimants have been previously imprisoned, would not be solved.
26 The Ministry of Justice does not support the suggested shift in the decision-making role. They prefer the decision-making process to remain with the Courts. This ensures an independent and transparent decision-making process.
27 Also, ACC taking on the role of deciding who is disentitled is likely to be seen as contrary to the no fault principle of the scheme. Decisions would still go to the Courts for appeal. The Courts would still be likely to maintain their current high threshold for disentitlements. This is likely to increase costs for ACC on reviews and appeals.
What action could be taken to strengthen the disentitlement provisions?
28 The ‘repugnancy to justice’ provisions in the IPRC Act are comprehensive. It is ACC’s current approach (because of lack of information) to applying those provisions, in conjunction with the Courts’ approach in determining applications, which affect the outcomes possible under these provisions.
29 The IPRC Act requires the District Court to consider the impact of the harm caused by the offence but can do so only if ACC brings the case to the Court’s attention.
30 It is likely that the Courts will continue to apply a high threshold to any disentitlement clause, even if an additional criterion were to be added or some removed. This is because (unlike social welfare) the IPRC Act is a social contract in which people have given up their right to sue in exchange for comprehensive no-fault cover. Although the IPRC Act sets out what the Courts must have regard to, it does not limit what they may have regard to in making their decision.
31 ACC suggests that it would be possible to delete factors such as “the extent of other penalties the claimant has already suffered because of the events” or “the claimant’s personal circumstances” or “the strength of the claimants need for the entitlement” or “the resources the claimant has to meet that need”. This would significantly alter the non-exhaustive list of factors that the Courts suggested be taken into account in ACC v Curtis; ACC v McKee [1993] 3 NZLR 558; [1993] NZAR 342.
32 There is the risk that any changes in legislation, as suggested above, would not prevent the Courts from using the same or similar factors to those currently used in their decisions. The inability of the affected person to sue if disentitled means that a high threshold can be expected to continue to be applied by the Courts, having regard to all the facts before them on an individual case.
33 The Ministry of Justice is not in favour of deleting any of the factors under section 122 of the IPRC Act. They believe that the Court should be able to consider the totality of the claimant’s case.
Other options
34 Irrespective of any legislative changes, operational changes would be required to identify cases for consideration. It is recommended that operational improvements be considered in the first instance. This will then allow appropriate legislative changes to be explored once more is known about these claimants.
Option 1: ACC investigates the costs and benefits of actively seeking out relevant claimants
35 Currently ACC identifies cases that may be perceived as being ‘repugnant to justice’ on a responsive rather than a proactive basis. This means that only those cases that are causing concern are examined and dealt with. A case that has not received publicity or is not remembered by a case manager will be treated differently to one that has.
36 One way of strengthening the use of section 122 would be for ACC to actively seek out cases ACC sees as “repugnant to justice”. One method would be to match claim information with Department of Corrections information to identify claimants who may be seeking entitlements that are ‘repugnant to justice’. This would mean that ACC would first need to compare their claimants with a list of people who are, or have been, imprisoned. Second, ACC would need to identify whether the injuries for which entitlements are being provided occurred while committing a crime. Third, ACC would then consider whether it should apply to the courts for a judgement on whether a loss of entitlement is warranted. This option would increase ACC’s administrative costs because of the cost of sourcing and analysing the data (if it is available), and the probability that more cases would be identified. There are also major implementation and privacy issues to resolve whenever data matching between government agencies is sought.
37 The Department recommends that the costs and benefits of this option be further investigated.
Option 2: All claimants who are injured while committing an act for which they are imprisoned are considered for disentitlement
38 Another way would be for ACC to make operational changes to ensure that all claimants who suffer a personal injury while committing an offence that results in imprisonment have their entitlements and the circumstances of their case examined by the District Court to determine if receiving the entitlement(s) would be ‘repugnant to justice’. This option would be more costly than selecting particular claimants to take to court. ACC could spend time and money on a very small number of cases for little return or savings. The issues relating to data matching in option 1 would also apply to this option. It could also be damaging to ACC’s reputation if it was seen as targeting people who clearly do not meet the existing repugnancy to justice criteria, such as people injured while committing a minor offence who have outstanding personal circumstances or need for the entitlement.
39 ACC considers that both these options represent a global response to a provision that is rarely used relative to the number of entitlement claims that ACC manages each year. As an alternative they suggest they could work more closely with Ministry of Justice and Department of Corrections to identify areas for improvement in how the three agencies manage ACC claimants who fall under the umbrella of their respective agencies.
Risks
There is a risk that whatever changes are made, the perception that criminals are receiving large amounts of money in ACC claims will remain.
Currently there is no information available on the payments made for personal injury sustained during a crime.
Linking the ACC and Court systems for more intensive data matching is likely to raise privacy issues and would have implementation and ongoing costs which are not quantified at this time.
This is a complicated issue that requires more work and in-depth consultation with relevant stakeholders such as the Ministry of Justice and Department of Corrections. If you wish to proceed with a potential legislative amendment, we recommend that this issue be more fully considered subject to discussion on the content of the IPRC Amendment Bill.
Appendix 1: ACC Operational Policy
Criminal disentitlement
Overview
Disentitlement if claimant injured while committing an offence
Section 122 of the IPRC Act Court may deny statutory entitlements to previously imprisoned offender outlines the entitlements that may be declined if:
It is confirmed that a claimant’s personal injury was suffered in the course of committing an offence (for which they have been convicted and sentenced to imprisonment); and
The District Court has determined that it would be repugnant to justice for the claimant to receive entitlements.
The branch makes a submission to ACC Legal Services, via Operations Support Group, who then decide whether or not to take an application to the District Court to disentitle the claimant. They will decide this on a case by case basis.
Note:
Any compensation, grant or allowance paid up to the date of disentitlement or imprisonment is not considered an overpayment.
Claimant charged with, or convicted of, the murder of the deceased
Section 120: Disentitlement for conviction for murder states that no compensation, grant or allowance, made in relation to a fatal claim, is payable to a person who is charged with the murder of the deceased person.
This includes the payment of a survivor’s grant or weekly compensation to a dependant, and any other payment made in relation to the fatal claim.
Suspension of entitlement applies:
Until the murder charge has been determined or withdrawn (or replaced with a less serious charge).
Only to compensation payable on the fatal claim. If the person is receiving compensation on another claim as a result of personal injury, that compensation should not be suspended under this section.
If a murder charge is proven, the suspension then becomes a disentitlement decision under Section 120.
Suspension of payments while imprisoned
During the period a claimant is held in any penal institution, Section 121: Disentitlement during imprisonment, disentitles claimants from any payments of the following:
Compensation.
Grants or allowances.
Assessments or payments of lump sum entitlements.
This applies equally to claimants who:
Are held on remand (not sentenced); and
Have been sentenced.
Notes:
Claimants who are disentitled continue to have rights under the ACC Code and should receive the highest practicable standard of service and fairness from ACC.
For independence allowance payments, refer to the disentitlement sections, 117 to 123 of the Accident Insurance (AI) Act 1998, which continue to apply.
Home Detention
A claimant who is on home detention may be restricted to the range of rehabilitation programmes they can undertake. However, the claimant can not be disentitled, or have their entitlements declined under section 117(3) solely on the basis that they are on home detention.
Please refer to the document Home Detention under vocational rehabilitation on Informe for more information.
Claimant injured while committing an offence
If it appears that a claimant’s personal injury occurred in the course of committing an offence, for which they have been convicted and sentenced to imprisonment, then follow the steps below and the Procedures on the next two screens.
Branch office responsibility
The case manager gathers information about the claimant and the offence for which they have been convicted, and writes a memo to ACC Legal Services, via Operations Support Group, for a decision on whether the case should be referred to the District Court.
The Branch Technical Claims Manager checks the information and co-signs the memo before the case file is referred.
District court responsibility
If the case is referred to the District Court, the court determines whether or not it would be repugnant to justice for the claimant to receive entitlements.
Procedure: Confirm claimant injured while committing an offence
Use this procedure if it appears that a claimant’s personal injury was suffered in the course of committing an offence, for which they have been convicted and sentenced to imprisonment.
1 Write to the Police Department, Department of Corrections, or Ministry of Justice (whichever is appropriate) and ask for confirmation that personal injury was sustained during the offence for which the claimant was convicted.
2 Write to the Registrar of the local District Court, and:
Request a certified copy of the criminal record relating to the conviction of the claimant.
Request a copy of the Judge’s report or sentencing.
Inform the Registrar that the release of information is needed by ACC under principle 11(e)(iv) of the Privacy Act 1993.
Note that a fee of $25 is payable to the District Court for this information.
3 Write to the Department of Corrections for a copy of the claimant’s probation report or pre-sentence report. Inform the department that ACC needs something that will provide some general background on the claimant’s personal circumstances, such as the following:
Marital status.
Number or dependants.
Employment history.
Damage to property.
Death or injury to other persons.
Any other injuries or disabilities.
4 Enter a Task on Pathway for two weeks to follow up these requests for information.
Procedure: Refer case file and action decision (claimant injured while committing an offence)
1 Once the information requested in the previous procedure has been received:
Write a memo to the Technical Claims Manager, summarising details of the claimant’s accident, conviction, personal circumstances, and details of any current entitlement.
Make a copy file to be held in the Branch office.
Enter a Task on Pathway for eight weeks to follow up.
2 Refer the original file to the Technical Claims Manager to:
Make sure all necessary information is on file.
Co-sign the memo.
3 Refer the original file to ACC Legal Services, via Operations Support Group.
Note:
Make sure that any payment of compensation, grant or allowance continues to be paid until the District Court has made a decision.
4 On receiving the case file back from ACC Legal Services:
Action any decision by the District Court to stop payments of all (or specified) compensation, grants or allowances that are being paid.
Write to the claimant advising them of this.
Note that in this situation any compensation, grant, or allowance paid up to the date of a disentitlement decision is not considered an overpayment.
Claimant charged with, or convicted of, murder
How ACC is notified of murder charges or convictions
Claimants charged with or convicted of murder may not be known at the date of claim lodgement, however ACC may be notified at a later date by:
The Police Department.
Department of Corrections.
Ministry of Justice.
A prison institution.
Newspaper.
Word of mouth.
A change of claimant’s address.
The claimant’s solicitor.
The claimant’s employer.
The claimant.
Telephone notification
ACC may be notified by telephone of the claimant’s imprisonment, however, written confirmation must be obtained by writing to the local Department of Corrections.
Definition of murder
Murder is defined in the Crimes Act 1961 as an illegal act by one person (the offender) that causes the death of another person when either of the following is true:
The offender intends to cause death or knows that death is likely to result.
The offender intends to cause grievous bodily injury without death, but death results anyway.
For ACC, murder includes the killing of a person outside New Zealand, which if done in New Zealand, would be classified as murder.
Causing the death of another person may be manslaughter rather than murder if the offender was provoked (whether by the victim or by someone else) or if the offender did not have the type of intent necessary for murder. In terms of the Crimes Act 1961 (and for ACC as well) manslaughter and murder are different offences.
Procedure: Disentitle claimant convicted of murder
Use this procedure if both the following apply:
The claimant is claiming compensation, grant or allowance made in relation to a fatal claim; and
The case manager has been notified that the claimant has been charged with the murder of the deceased.
1 If notification of the charge or conviction hasn’t come from the:
Police Department,
Department of Corrections,
Ministry of Justice, or
Prison institution,
then write to the appropriate organisation to obtain a statement confirming the details of the charges or conviction, or a summary of conviction.
2 On receipt of the above statement, confirming the charges or conviction:
If the claimant is charged, cease or suspend any compensation, grant or allowance payable.
If the claimant is convicted, they are disentitled for any payment. Recover any payment previously made to them in relation to the fatal claim as a debt to ACC.
3 To cease or suspend payments, do the following:
In Pathway change the dependant to ‘Does not qualify’. Then recalculate the weekly compensation. Enter the overpayment reason when you Process for Payment.
If payments had also been paid from IIS use the payment adjustment calculator to create a debt for these payments.
4 Advise the claimant in writing that their payments have been ceased, and the reason for this.
5 If the claimant is charged with murder, but is later acquitted of the charge, reinstate their compensation, grant or allowance (from the date of suspension) as long as:
The claimant still qualifies for the entitlement under the relevant section of the AI Act 1998.
No payments are made for any period that the claimant was imprisoned.
Suspension of payments due to imprisonment
Section 121 [2] states that no compensation, grant or allowance, assessment or payment of lump sum entitlement, will be paid to a claimant for any period that they are an inmate in any penal institution.
Note that:
A penal institution includes a prison, police cell, or corrective training institution.
An inmate is any person being held in the legal custody of any penal institution.
A person remanded in custody is an inmate, held in prison, who has yet to be convicted or sentenced to imprisonment.
A person serving ‘Home Detention’ is not an inmate and therefore is not disentitled under Section 121.
Types of entitlements withheld
The following entitlements can be withheld from any claimant held by way of remand or sentence in a penal institution:
All weekly compensation.
Independence allowance.
Survivor’s grant.
Lump sum assessment or payment under the IPRC Act 2001.
Types of entitlements not withheld
The following entitlements are not withheld from any claimant held by way of remand or sentence in a penal institution:
Treatment and services.
Rehabilitation.
Related transport costs.
Lump sums (paid to 1972 and 1982 Act claimants, if entitlement exists).
Example
A woman is serving a two-year prison sentence from 1 October 1992 to 3 September 1994. Her husband dies from injuries received in a car accident on 2 November 1992. The survivor’s grant can be paid to her once she is released from prison, because it is not considered to relate to a specific period.
Special case: Independence allowance (IA)
Special rules apply in respect of disentitlement to independence allowance (IA) quarterly payments for quarters when a claimant enters, or is released from prison. Clause 63 of Schedule 1 of the AI Act 1998 prevents ACC from recovering all, or part of, a quarterly IA payment for a quarter in which the claimant’s entitlement to an IA stops. This is applied to adjustments in IA for imprisonment in the following ways:
Where a claimant is sent to prison during a quarter, and that quarterly payment has already been made in advance, ACC is unable to recover any part of that quarterly payment.
If a quarterly payment had not been made before the claimant enters prison, and arrears are owed for that quarter, ACC can adjust the amount paid for that quarter, so that it only reflects entitlement for the weeks before the claimant was imprisoned.
Where a claimant is imprisoned for an entire quarter (that is, it is not a quarter in which the claimant entered or was released from prison), ACC can withhold the claimant’s payment for that entire quarter.
Where a claimant is released from prison during a quarter, ACC can reduce the quarterly payment to show that no amount is payable for the time the claimant spent imprisoned during the quarter.
Examples
A claimant is imprisoned on 18 August 2001 for 18 months. Their independence allowance has already been paid quarterly in advance for the period 12 June to 10 September 2001. ACC is unable to recover any part of that quarterly payment, and will not make any further quarterly payments until the claimant is released from prison.
A claimant is sent to prison for two years, from 12 July 2000 until 9 July 2002. The claimant was assessed for IA shortly before being imprisoned and their first quarterly advance payment was due for the period 10 July 2000 until 8 October 2000. However, ACC did not make the payment immediately and became aware before paying IA that the claimant was imprisoned. ACC reduced the quarterly payment to reflect that the claimant would be imprisoned for most of that period. No further quarterly IA payments would be made until the claimant is released from prison.
A claimant’s three-year prison term ended on 19 March 2000. Their independence allowance is reinstated following their release from prison. The IA payment for the quarter in which they were released is adjusted to reflect that they were not entitled to payment for the first part of the quarter when they were still in prison.
Reinstatement of payments after release
Weekly compensation can be reinstated once a claimant is released from prison, if:
They are still incapacitated.
They have medical certification to show that they were incapacitated continuously during the time they were imprisoned.
Independence allowance can be reinstated if the claimant is still eligible to receive the allowance.
Lump sum entitlements under the IPRC Act can be made or assessed once the claimant is released from prison or a penal institution.
Backdated payments
Neither weekly compensation nor independence allowance payments can be backdated for the period of imprisonment, regardless of whether claimants are convicted or acquitted and discharged.
Indexation increases for Weekly Compensation
The Indexation Regulation in the AI Act 1998, ARCI Act 1992 and IPRC Act 2001, states that indexation increases apply to weekly compensation only if it was paid or payable for 26 of the 52 weeks prior to the effective indexation date (usually 1 July).
If a claimant is not entitled to weekly compensation for 26 out of the 52 weeks prior to the effective date, due to disentitlement as a result of imprisonment, the claimant is not entitled to the relevant indexation increase because that compensation was not paid or payable.
Order in Councils made under the Accident Compensation Acts 1972 and 1982 must be applied to a claimant’s relevant earnings, regardless of whether the claimant was in prison.
Examples
A claimant comes into the Branch and states that he wants to be reimbursed weekly compensation, which was suspended when he was remanded to prison seven months ago on a murder charge.
He has now been to trial and found not guilty after new information came to light to prove his innocence. While the claimant was in prison he was unable to keep up the payments on his house because his weekly compensation had been suspended. As a result, his house has been sold and he has nowhere to live.
A woman arrives at the Branch in a distressed state. Her independence allowance was suspended two weeks ago following her arrest for alleged drug trafficking. She had been held in custody since her arrest but was released after the police withdrew her charges. The woman would like her allowance reinstated and her suspended payments reimbursed.
Neither of these claimants are entitled to reimbursement of payments withheld during the time of their imprisonment regardless of their guilt, innocence, or lack of conviction for offences.
Procedure: Suspend payments while imprisoned
Use this procedure if both of the following apply:
The claimant is claiming for or is receiving compensation, grant or allowance or is requesting assessment or payment of a lump sum entitlement.
The case manager has been notified that the claimant has been held on remand or sentenced to imprisonment.
1 If notification is received over the telephone, record the conversation on memorandum for the case file.
2 Write to the local Department of Corrections, asking for:
Confirmation of the claimant’s imprisonment.
The date they were imprisoned or remanded.
The length of sentence (if applicable).
Advise that this information is requested under Section 280 [3] of the IPRC Act 2001, and will be used confidentially, solely for the purposes of determining entitlement.
3 Enter a Task on Pathway for two weeks to follow up.
4 If confirmation of the claimant’s imprisonment or remand is received from the Department of Corrections:
Suspend payment of compensation, grant or allowance immediately, under Section 121 [4].
Send DISENT01 [5] to the claimant advising them of the decision to suspend their payments while they are imprisoned.
5 If the claimant receives weekly compensation, add a ‘disentitled’ period to the weekly compensation calculator.
6 If the claimant receives Independence Allowance, add an ‘In Prison’ person period to the claimant notebook.
7 If any compensation, grant or allowance has been paid during any period of the claimant’s imprisonment, recover this amount as a debt.
Note:
Where an IA quarterly payment was made before the claimant entered prison, no recovery can be made for IA for the quarter in which the claimant was imprisoned. Instead, withhold future quarterly IA payments.
[1] Non-compliance necessary for conduct of court proceedings
[2] Disentitlement during imprisonment.
[3] Disclosure of information to Corporation
[4] Disentitlement during imprisonment
[5] Stopping payments to a claimant imprisoned letter
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Tomcat, on 03 March 2016 - 12:51 AM, said:
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