Given the haphazard way the claims processes came into existence and how they have scarcely changed since their establishment, it is not surprising they suffer from many defects. The processes have been focused on meeting the interests of agencies and fall well short of meeting most survivors’ needs for a process that is open, consistent and principled and provides meaningful redress for survivors. It is hard to overstate the harm these claims processes have caused survivors, with many comparing it to the original abuse. One described having “very dark times” after a hostile meeting with the Ministry of Social Development under their claims process.  He said that after a follow up phone call not long after, “I had a full-on breakdown”. In the following section, we outline the various deficiencies in these claims processes. Survivors’ experiences of these processes are outlined further in section 2.5.

Lack of consistency

Each agency has designed its own claims process in isolation from the others. It is true that each is responsible for different care settings and operates within different legal frameworks, but these considerations matter little to survivors, who had no control over which agency was responsible for their care and were often abused in more than one setting.

The Crown did set up an interagency group to look into a State-wide response, and it did produce various documents about the benefits of a uniform approach to redress. But in reality, each agency preferred to settle claims in its own way, and this produced a considerable range of financial and non-financial redress and supports, as set out in Table One. Several government witnesses told us about the importance of having consistency within and between claims processes so that similar claims resulted in similar outcomes. But, again, the reality has been quite otherwise, and sometimes the differences have been extreme. A person who suffered serious sexual and physical abuse in a social welfare setting might today receive up to $55,000, along with an apology, up to six counselling sessions, a contribution towards legal advice and, in some cases, wraparound support. The same abuse in a healthcare setting might result in a maximum payment of $9,000.

Table One: Forms of redress and support offered under agencies’ claims processes

Payments have also varied within each agencies’ processes over time. This has resulted in survivors receiving different amounts for the same abuse in the same or similar settings. For example, Georgina Sammons’ settlement offer was significantly higher than that of her sister Tanya, who received an offer under the Ministry of Social Development’s fast track process. Georgina said the ministry offered no explanation for Tanya’s lower figure, despite the pair suffering much the same abuse, and many of Georgina’s allegations not being accepted. “If they really accepted Tanya’s information, why was her offer so much less?” Similarly, survivors of Whakapakari youth justice programme received vastly different settlement amounts despite experiencing similarly serious abuse – some survivors who settled under the fast track prosess received $5,000, while a survivor heading towards trial received $85,000. Under Ministry of Health processes, a survivor of Lake Alice child and adolescent unit might receive more than $70,000, while a survivor of abuse in a different psychiatric hospital could receive a maximum of only $9,000.

The agencies’ claims assessment processes are also inconsistent. A survivor making a claim to the Ministry of Social Development will typically have a face-to-face meeting with them, the Ministry of Education will offer a survivor an opportunity to meet with an assessor if they wish, and communication with the Ministry of Health tends to be by phone or in writing only.

The processes also required different levels of proof for the claims. Agencies found it difficult to set out the exact type of proof they required to accept a claim of abuse: one described it as “an art, not a science”. However it is clear to us that what proof was required differs between agencies. The Ministry of Health said it takes claims at face value, though survivors with claims that are “less credible” or have a low level of evidence receive lower payments. The Ministry of Social Development does not require a record of the alleged abuse, but does require some supporting information on social work and institutional records, such as a record of behaviour change that may support abuse. It has often rejected parts of claims where it cannot find any such information on record, on the basis that there is “insufficient information” to accept the claim. Several survivors told us this made them feel like they were being treated like liars. The Ministry of Education appears to require even more proof of abuse. It told us it did not apply a high standard of proof – that it only looks for supporting information to show that abuse probably happened. However, the experience of advocates was that survivors often needed more proof to have a claim accepted by the Ministry of Education than it did for the other agencies.

Overall, the redress that a survivor is able to get and the process they have to go through is determined by which agency is responsible for their care and when they made a claim, rather than the abuse they suffered.

Built to suit agencies, not survivors

By and large, State agencies have designed their claims processes to suit the relevant agency rather than survivors, and this shows in the experience of survivors. Again and again, survivors have described how difficult they found the experience of making a claim, and how they wanted more than just monetary payments. In the Ministry of Social Development’s consultation with survivors in 2006, survivors told it that they wanted to be listened to non-judgmentally, and have the harm caused to them acknowledged. They also wanted an apology, responses that included services such as therapy, help connecting or reconnecting with whānau, help understanding their care records, education and life skills and for their experience to be used to prevent harm to children in care now. And yet the ministry’s historic claims process focused on financial redress. Other agencies also gave no systematic thought to offering non-financial redress, such as therapy or counselling, education, connection or reconnection with whakapapa and other support, as Table One above illustrates. Most agencies offer little in the way of assistance for Deaf or disabled survivors to make a claim. The Ministry of Health in particular has no services or supports specifically available to disabled people, even though many survivors of abuse in health settings are disabled.

Agencies have also given little consideration to survivors’ wellbeing while making a claim. In many instances, staff have shown little understanding of the trauma survivors have suffered and the difficulties of disclosing abuse and making a claim. For example, one survivor, Loretta Ryder, said she was asked deeply personal questions by the Ministry of Social Development’s claims contact centre over the phone. “I started crying because I was on the phone while at the garage getting my car fixed and I was shamed.”

At the time of our hearing, only one agency, the Ministry of Social Development, routinely offered counselling to survivors making a claim to help them in the process. Very recently, the Ministry of Education has also begun doing this. The Ministry of Social Development has also recently begun to pilot more extensive forms of support for claimants, such as support when receiving records and help accessing other services. It is also investigating further non-financial redress options, such as connection or reconnection with whānau and a formal channel to pass information back to Oranga Tamariki to support improvements to current care systems. This has been well-received by advocates so far, but much of the plan is yet to be rolled out.

Focus too narrow

The claims processes are designed to focus only on examining the merits of each claim as made by an individual survivor of abuse. None of the processes investigate abuse in a more systematic way. Similarly, none of them connect what they learn with current care agencies and institutions to make sure similar abuse is prevented in future, despite this being a clear priority for so many survivors. The Ministry of Social Development is only now looking to improve how its historic claims team can provide anonymous information to Oranga Tamariki to support improvements in the current care system.

Nor does any of the agencies’ claims processes examine or respond to the harm to survivors’ whānau and the wider community, or the intergenerational impacts of abuse. As we discussed in Part 1, addressing this harm is an integral part of healing and restoration in a model that is informed by tikanga Māori .

Lack of independence

It is very difficult for the agencies to be truly impartial or independent because, in running their own claims processes, they are, in essence, investigating themselves. They have the final say on what allegations they accept and what settlement offer they make. At two of the agencies, the Ministry of Social Development and Ministry of Education, some claims assessors previously worked for the agency, undermining public perception of their impartiality. All four agencies said their claims team was structurally separated from the rest of the organisation, and they maintained their claims processes were impartial and gave rise to no direct conflict of interest. The Ministry of Social Development said it had processes in place to manage any direct conflict of interest with staff that did arise.

However, survivors definitely see a conflict of interest, especially when an agency is defending court cases and determining claims at the same time. Others also see this problem: there have been calls for an independent body to resolve claims from, for example, the Human Rights Commission in 2011, the Confidential Listening and Advice Service in 2015, and the Ministry of Social Development’s consultation with Māori survivors. In our view, it was a particular affront to Māori not to have a process independent from the Crown, given the Crown’s role in colonisation and the taking of Māori children and vulnerable adults into care.

No independent oversight of the claims processes, or means of independently reviewing the agencies’ decisions, exists. Survivors have no appeal to an independent adjudicator beyond the general right of complaint to the Ombudsman. The Ministry of Health and Ministry of Education told us they will review their decisions if claimants provide further relevant information, and since 2020 the Ministry of Social Development will also revisit decisions in very limited circumstances. None of these reviews are independent of the agencies. Survivors often do not know that this option is available.

The agencies said survivors can go to court if they dispute their factual findings or go to the Ombudsman to challenge agencies’ decisions. However, the agencies’ continued raising of the limitation defence makes use of the courts to make findings of fact not viable for most survivors. And when the Ombudsman recommended one of them reverse a decision it had made – the Ministry of Social Development over its refusal to consider the claim of a deceased person – it chose not to follow the recommendation.

Inadequate recognition of tikanga Māori and Crown’s te Tiriti obligations

The agencies have given very little consideration to the Crown’s te Tiriti obligations when developing or running their claims processes, even though agencies were aware, as early as 2007, that a majority of claimants were Māori. They have not involved Māori in the design of the claims processes and – until recently – have carried out very limited consultation with Māori, about what Māori want from such a process. The claims processes have very little recognition of tikanga Māori in the way they operate and offer very little culturally suitable support or redress. Nor have there been many Māori amongst the agency staff responding to claims. The agencies’ current actions or proposals to involve Māori, and incorporate tikanga Māori into their settlement processes are tentative and limited in scope, especially given the Crown’s awareness of its te Tiriti and human rights obligations in this area.

Only the Ministry of Social Development has consulted with Māori. It carried out very limited engagement with Māori before setting up its claims process in 2007: it informally consulted nine survivors, six of whom were Māori. However, it did not actively seek Māori involvement, and its reports of the consultation did not acknowledge that they were Māori or any particular needs of Māori survivors. A decade later, in response to claims filed with the Waitangi Tribunal, it hired consultants to run workshops with 34 Māori survivors and some professionals. This consultation informed some new initiatives, including an effort to diversify staff, and trialling processes to allow whānau involvement in the claims process. It is also investigating the possibility of including whānau connection or reconnection in redress packages. Since our redress hearing, the Ministry of Education has also introduced a claim lodgement form that asks survivors if they would like the ministry to use a kaupapa Māori approach in the claim process. These measures, however, have come late and are only a small step towards giving effect to the Crown’s te Tiriti obligations and recognising tikanga Māori. Other suggestions from the consultation in 2007 that have not been adopted include involving Māori survivors in the design of the claims process and allowing claims on behalf of deceased people.

Table Two: Recognition of te Tiriti and tikanga Māori

No consideration of human rights obligations

The agencies did not consider survivors’ human rights, whether those guaranteed under international conventions to which New Zealand is a signatory or those set out in the New Zealand Bill of Rights Act 1990, when designing the claims processes. None of the four agencies expressly considered the State’s obligations to provide redress for breaches under, for example, the United Nations Convention Against Torture, or the United Nations Convention on the Rights of Persons with Disabilities, and nor do they consider these conventions when determining claims.

Since the early 2000s, many claimants have alleged breaches of the New Zealand Bill of Rights Act 1990, and asked for larger settlements in recognition of these breaches. However, none of the four agencies has formulated a policy on how to take into account potential breaches of the 1990 Act in assessing claims.

When deciding how much to offer a claimant, neither the Ministry of Health nor Ministry of Education consider if the allegations amount to a breach of the New Zealand Bill of Rights Act 1990. At the State redress hearing, Oranga Tamariki told us it would take into account alleged human rights breaches in considering the final five claims it was assessing (which have now been resolved). It has no formal policy, but plans to set out how it will consider human rights breaches in its new redress process. In 2016, the Ministry of Social Development decided it would begin to recognise potential New Zealand Bill of Rights Act breaches in payments under its full assessment process. However, it says that currently any claim identified as having a Bill of Rights Act component cannot be progressed until the Ministry has considered advice from Crown Law and finalised its approach to these types of claims. Survivors whose claim has been delayed due to a potential breach receive little communication from the ministry and are not even informed of the particular reason for the delay. The Bill of Rights Act claims were not considered under the two-path approach and the ministry has no plan to provide a remedy to those who suffered breaches.

No principled basis for determining financial payments

The agencies have no principles they draw on to determine what is a fair financial payment, such as calculating the cost of the harm suffered, comparing to court ordered payments in other contexts, or comparing to payments made under redress processes for claims of abuse internationally. The agencies go to some effort to be internally consistent in what they offer, but that has nothing to do with the fairness of claims per se. Even then, we have found that internally payments have not been consistent.

The Ministry of Social Development told us it determined early settlement offers by comparing to previous settlements made by Child, Youth and Family, lump sum payments under ACC, and exemplary damages awards made by the court. However, from 2008, it focused solely on ensuring offers were consistent with past payments it had made under the claims process for similar levels of abuse. The Ministry of Education and Oranga Tamariki loosely followed payments by the Ministry of Social Development. However, neither questioned how the ministry arrived at its payment levels and whether they were adequate or fair. The Ministry of Health did not compare itself to other agencies, but did look at previous payments made by the Crown Health Financing Agency when it was determining settlement amounts under its claims process. However, the amounts of these previous payments themselves were not based on principle, but rather on finding a way to fairly distribute the $5 million set aside to resolve the agency’s claims among the 300 or so outstanding claimants.

No agency witness could point to any principled basis for determining an appropriate settlement amount. In truth, payment amounts are arbitrary.

The agencies all told us their payments are not designed to compensate survivors for the harm or damage suffered, but rather are intended as an acknowledgement of the abuse suffered, or (in the case of the Ministry of Health) to aid wellbeing.  The payments are very low when compared with other payments made by the State, for example in response to one off instances of arbitrary detention or delay in releasing records. One survivor questioned why women in prison who were subjected to internal examinations were awarded $25,000 compensation, compared to the $20,000 she was offered under the fast-track process for the abuse she suffered in care throughout her childhood. She expressed frustration at this inconsistency, describing it as “injustice within the system, it needs to change”.

Table Three:  Overview of payment amounts mad e by Australia and Aotearoa New Zealand State institutions

Lack of publicly available information on process

With the exception of the Ministry of Social Development, agencies publish little information about their out-of-court claims processes and how they work, including the criteria they use to determine payment amounts and the reasoning for accepting or rejecting allegations. This is a source of frustration for survivors and advocates. No agency provides information in accessible forms for those with learning disability or low literacy levels.

Prior to 2020 the Ministry of Education had only basic information on its website about who was eligible to make a claim. In March 2020, it added useful information about what survivors could expect in the claims process, including a meeting with an assessor. But there is still nothing about what its assessors will take into account, what types of abuse it recognises, how much money it may offer and many other things besides. It provides survivors who make a claim with a decision including a response to each allegation, but does not provide the report of the assessor showing the detailed reasoning for how the assessor arrived at decision, as it considers the report legally privileged.

The Ministry of Health still has no information at all on its website about its claims process, despite telling us a year ago that it had drafted material to publish there. It told the Waitangi Tribunal the same thing in 2017 when the tribunal raised this criticism. Philip Knipe for the ministry told us that despite this lack of information, he was confident potential claimants had enough information to make a claim because “official and well-publicised channels” for making complaints had existed for many years. We disagree, and survivors themselves have told us they were unaware of the claims process.

Oranga Tamariki published information about its claims process not long before the inquiry’s State redress hearing, and told us at the hearing it should have done so much sooner. The information simply tells people that claims of mistreatment in care can be made and gives contact information. It is not easy to find on the website: to reach the page, it is necessary to scroll to the bottom of the homepage, click on “compliments, complaints and suggestions” then under the heading “feedback” there is a link to “claims”.

In contrast, the Ministry of Social Development has now published an extensive amount of information about its claims process, including a brochure outlining the process for claimants. It used to withhold the criteria it used to determine the amount of payment offered, because it didn’t want claimants to tailor their claims to meet its payment thresholds. However, after a complaint was upheld by the Ombudsman, it also published these criteria on its website.

Inadequate resourcing and long delays

All agencies’ claims processes are inadequately resourced. They are unable to keep up with the number of claims or offer fair payments. The processes have often been run by small teams and, consequently, suffered long delays. In October 2020, Oranga Tamariki had three employees working on their claims process, while the Ministry of Education had five full-time employees, plus external assessors (in the year since the State redress hearing the team has expanded to 12 full-time employees). Funding limitations have also affected the size of monetary payments offered to survivors through the claims processes. It is critical to ensure organisations that are providing redress for abuse in care claims are well-resourced. If they aren’t, claims processes will continue to be delayed or may sacrifice thoroughness for speed and lower payments, as with the Ministry of Health’s wellness payments.

Some claimants have experienced particularly long delays. Claims by survivors who had been convicted of very serious crimes, such as murder, child molestation and rape, were halted between 2010 and 2017, while the government considered introducing policy to restrict their use of settlement payments. It was not until December 2017, when the then Government decided against introducing policy on this matter, that these claims were resumed, and they were included in the Ministry of Social Development’s two-path process. Others face delays as their claim involves a potential breach under the New Zealand Bill of Rights Act 1990, as noted above. Survivors with these types of claims in the Ministry of Social Development claims process are being kept waiting until the ministry finalises an approach to this issue.

These lengthy delays can disadvantage survivors, who may spend years trying to seek redress through a government agency, only to lose the opportunity to make a civil claim if it takes them beyond the limitation period. To prevent this, survivors must lodge a claim in court to preserve their rights. This is a step survivors may not be aware of or may find too expensive or difficult. Survivors making a claim to the Ministry of Social Development are now exempt from this, after Cooper Legal and the ministry agreed the ministry would not rely on the time the survivor spent making a claim through its claims process if they later made a claim in court. There is currently no similar arrangement in place with other agencies.

Next: Summary of findings