14 Dec 2021

'Essentially fobbed off' - Sexual assault victims say they struggled to get financial help from ACC

7:31 am on 14 December 2021

Two sexual assault victims say ACC discouraged them from making claims and failed to inform them about the financial help they could be entitled to - and a lawyer says it's part of a long-running pattern at the corporation.

ACC Building in Wellington

File image. Photo: RNZ / Angus Dreaver

One of the women, who was raped at knifepoint by a relative taking meth and suffering from paranoid schizophrenia, said ACC told her she was better off staying on a Work and Income benefit because its own process for getting weekly compensation was "too traumatic".

The woman, Sarah*, first made a claim to ACC in 2012, which paid for therapy, but the corporation failed to inform her she could be eligible for income cover even though she had just stopped work due to post-traumatic stress disorder.

It wasn't until 2019 when she was off work again after struggling with a new bout of nightmares and flashbacks that she discovered she may be eligible for ACC income compensation and that it could exceed Work and Income benefit payments.

But Sarah said an ACC staff member then discouraged her from applying.

"She told me, 'I wouldn't apply if I were you. You have to have an assessment with a psychologist which takes about four hours. Most people find it too traumatic to complete the process. I would just apply through WINZ if I were you'."

Notes Sarah took during the phone call say the ACC staff member told her: "Most people don't apply because it takes so long, and it's very difficult".

Sarah said she told the staff member she wanted to apply for weekly compensation anyway, but she was only sent application forms for a lump sum compensation payment. She enquired about how to apply for weekly compensation again in July 2020 and the staff member told her she didn't know but would find out and send her instructions, Sarah said. Nothing ever arrived.

Later that year, a psychologist advised Sarah that if she wanted to apply for weekly compensation she should see her GP who could complete an ACC45 form for her.

"This was the first time that I received clear instructions on how to apply," Sarah said.

Sarah applied the next day, but her claim was rejected. "ACC declined my application for work compensation because I wasn't an earner at the date of the first incapacitation, which they conclude as being the date when the GP completed the ACC45 form."

ACC rules consider the date of injury for sensitive claims as the date the claimant first seeks help for a mental injury, rather than when the sexual abuse or assault occurred. Eligibility for wage compensation depends if a claimant is working when they first seek help.

"I explained that if ACC told me how to apply when I first asked them over two years ago then I would have been an earner at that date," Sarah said.

"I asked ACC to take responsibility for that. They haven't, even though the date of when I first asked them is on their own records."

Sarah has lodged a formal complaint with ACC but she believed the problems she encountered were systemic. "It should not be this difficult for sensitive claimants to find out what they may be entitled to with ACC."

"It makes me wonder how many other victims are out there who should be receiving weekly compensation for lost income but have been misled."

She also felt let down by health professionals she had seen over the years who did not seem to know she could get financial assistance from ACC. "ACC are obligated to make sure that the providers know the legislation, know what they offer and are familiar with all the processes, but they're just not."

The issues with ACC had hindered her recovery, Sarah said.

"It's incredibly hard to fight ACC while struggling with a mental injury, I understand why so many sensitive claimants don't complete the process for financial compensation, ACC is obstructive and not forthcoming where they need to be."

Another woman, Eva*, told RNZ ACC advised her not to file a sensitive claim after being raped in her teens.

She had already made a sensitive claim relating to childhood sexual abuse, and she said her case manager told her not to file another. The same case manager also told her "not to worry about" submitting evidence she had spoken to a high school counsellor in 2008 about the childhood abuse she had experienced, Eva said.

ACC later declined her application for income compensation because it counted the date of injury as the first time Eva told her GP about the abuse, which was in March 2014 when she wasn't working.

Eva said if the date of injury had been counted as when she spoke to a counsellor in 2008, she would have been covered. She said the case manager who previously told her not to submit evidence of this had given her incorrect advice.

"It took me so long to actually approach ACC, because the information isn't clear.

"I feel like ACC's business model is working off of you not knowing what you're entitled to."

'Essentially fobbed off'

Solicitor Brittany Peck from ACC claims specialist firm John Miller Law said ACC had a history of not telling clients what they were legally entitled to.

"ACC actually has a statutory obligation to facilitate entitlements. But we don't see it, and I think it's particularly lacking in the area of sensitive claims.

This was particularly evident when it came to financial support such as weekly compensation, loss of potential earnings, lump sum payment and independence allowances, Peck said.

Peck represented Sarah and believed she had been "essentially fobbed off" by ACC.

"Encouraging sensitive claimants to access monetary compensation is really lacking on ACC's side, and if those people don't have access to advice or support, like [my client] until she came to us, they don't know that what they're being told isn't right."

Green Party ACC spokesperson Jan Logie said the process of applying for financial support needed to be more transparent and easier to work through.

"I've had the current process described to me by a survivor as 'being sent into a mind forest without a map'."

Logie had heard "bloody horrific" stories from survivors who had struggled to find out what their entitlements were.

She said she had heard from people who had been told by ACC it wasn't worth applying because they weren't in work, or that if they did apply that they would have to pay their benefit back, she said. That wasn't true, she said.

"There's a sense they were given misinformation along the way, and just described it as a brutalising process. It clearly indicates we need change."

ACC responds

ACC chief operating officer Gabrielle O'Connor said ACC was "committed" to Sarah's recovery and "making sure she has the support she is entitled to".

"We are sorry she found the process to seek help from ACC difficult. We're continuing to work with her to find any medical evidence which might change her eligibility for weekly compensation."

O'Connor disputed Sarah's claim that ACC staff discouraged her from applying for weekly compensation, saying ACC's notes of the calls did not match Sarah's.

"We acknowledge [she] gained a different impression from the conversation and we apologise for this."

O'Connor also said once Sarah's claim was approved in July 2020, ACC "immediately looked at her request for weekly compensation".

Sarah questioned why she had never been told of this. "If someone actually did look into it, then why didn't they tell me? I had asked three times by this point."

Meanwhile, O'Connor denied deliberately withholding any information from Eva about entitlements and maintained she did not need to file a second sensitive claim.

O'Connor said a decision on Eva's first claim would be once she had completed the supported assessment.

"If cover is accepted, we will then look at entitlements including weekly compensation or loss of potential earnings. The claim will cover the mental injury that resulted from the abuse she suffered, therefore a second claim for a separate event isn't necessary, and this was the advice provided to her by her recovery partner," O'Connor said.

* Names have been changed.

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