Standard and brief claims

We know some survivors will want to minimise the amount of time they spend gathering the necessary information and going through the process of making a claim. An apology, perhaps the use of one or two support services, and a financial payment may suffice. An in-depth application may be too traumatising for them and not what they want anyway. Other survivors will want to follow the process as thoroughly as possible and devote whatever time it takes to get full puretumu torowhānui and accountability. The principles of utua kia ea and manaakitia kia tipu call for an approach that is responsive to the different needs of survivors. The puretumu torowhānui scheme should be able to accommodate both needs while still maintaining the integrity of its claims process. We therefore consider it should offer survivors the choice of making a brief or standard claim. The scheme should give survivors clear, accessible information so they can make an informed choice about which is better for them. The legal advice and other support measures already mentioned should help, too, with this decision.

In a standard claim, the scheme would evaluate the claimed abuse and its impact. In a brief claim, the scheme would evaluate the claim, but not consider its impact or factor any impact into its payment calculation. The brief claim would be faster, but the financial payment lower. However, a survivor who made a brief claim would still be able to make a standard claim later on. This would reduce any risk that a survivor might opt for a brief claim only out of financial need.

The scheme will need to give its decision-makers detailed guidance on what amounts to abuse. This guidance should take into account what was generally considered to be acceptable behaviour at the time the abuse happened, or the “standards of the day”. However, in our view the guiding principle for decision-makers should be that, if they consider a survivor was treated in a way that was abusive or neglectful, the decision-makers should grant puretumu torowhānui.

As part of establishing two routes to puretumu torowhānui, we need to consider what standards of proof to apply, what level of involvement organisations and individuals named in claims should have, and what impacts of abuse to take into account when making a decision on a claim. We consider these next.

Standard of proof

For our purposes, this legal concept means the degree to which a survivor must prove their claim for the scheme to accept it. The three options we considered were:

• balance of probabilities: a claim is more likely than not to be true (the standard of proof applied in civil litigation)
• reasonable likelihood: a claim is not fanciful or remote and is more than merely plausible
• plausibility: a claim is apparently reasonable or probable without necessarily being so.

In our view, the scheme’s starting point for assessing any standard or brief claim should be belief in the survivor. This is consistent with a trauma-informed approach, the principle of manaakitia kia tipu, and the strong desire of many survivors that their account should, as a matter of course, be believed. If nothing is raised during the claims process to give reason to doubt the survivor’s account, whether about the abuse, the harm suffered or the link between the two, the scheme should accept the survivor’s claim.

Whether a brief or standard claim, the scheme should accept a survivor’s account of the abuse if it decides it is reasonably likely the survivor suffered the abuse. We think the reasonable likelihood standard distinguishes the scheme from the courts while still being high enough to protect the scheme’s integrity, since setting the standard too low may damage the scheme’s credibility and encourage fraudulent claims.

In a standard claim, the scheme should also accept that a survivor suffered or is suffering the harm claimed if it finds this to be reasonably likely. Once the scheme has found abuse and harm in a standard claim, it should accept there is a link between the abuse and harm if it finds that the link is plausible. 

In arriving at these views, we took into account that many claims will be made years or even decades after the abuse happened, and that the nature of abuse means documentary records seldom exist, which can make proving meritorious claims difficult. We also heard many compelling, credible accounts of abuse and have taken into account the fact some abusers have been convicted in the courts or admitted their responsibility. The scheme is not meant to replicate civil litigation, but rather to provide fair redress in keeping with its core values. It is appropriate therefore to have the lower, reasonable likelihood standard of proof in the scheme.

Also, survivors can find it difficult to show a link between abuse and harm because so much time has elapsed between the abuse and the claim. Other damaging life events may have happened along the way, making it still more difficult to prove the link to the civil litigation standard. We consider it appropriate for the scheme to use the lower plausibility standard for deciding on the link between abuse and harm once a survivor has shown they suffered abuse and harm.

Right of comment by institutions and individuals named in claims

Organisations and individuals have a fundamental right to comment when decisions are being made that may affect their rights, obligations or interests. This right applies to decisions by the scheme on claims of abuse in the care of a participating institution. Another reason for inviting comment from an institution named in a claim is that the institution would be required to pay or contribute to what the scheme gives the claimant, as well as provide apologies and other forms of puretumu. Yet another reason is that it would minimise the risk of fraud, a matter dealt with later. We also consider it may facilitate genuine and full apologies by institutions, consistent with the values of utua kia ea and te mana tāngata. We heard that currently some institutions hold back from such apologies in the belief that, having not given individuals a chance to comment on allegations, they cannot acknowledge abuse took place or that those individuals were responsible for it – even for the limited purpose of redress. Our suggested approach would eliminate this problem. To be clear, the organisation commenting would not have any interaction with the survivor making the claim, and its comments would go to the scheme assessor handling the claim.

Alleged perpetrators should also have a right to comment on claims in which they are named before the scheme makes its decisions, provided it is done in the way outlined next. This would be consistent with the provisions of the New Zealand Bill of Rights Act 1990.

The right of organisations and individuals to comment on allegations must be balanced against the interests of survivors, and so the following should apply:

• Neither organisations nor individuals should have the right to question survivors directly, and nor should they meet survivors unless survivors want to.
• The scheme should notify any organisation or individual named in a claim and give them a reasonable opportunity to respond. The organisation or individual may provide information, and raise questions or issues for the scheme to consider and, as appropriate, discuss with the survivor.
• A survivor should also have the right to comment on any information the organisations or individuals provide, if they wish.
• The time within which organisations or individuals must respond should be set out in statute or regulations, and the scheme should be empowered to proceed with decisions if it does not receive comments in time.
• The safeguards to protect disabled survivors still in care should be in place before the scheme notifies any organisation or individual named in a claim, and the scheme should consider whether these safeguards are necessary for any other survivors. 

Impacts of abuse the scheme will take into account

The Crown, working with survivors, the Māori Collective and the Purapura Ora Collective, should clearly and comprehensively define the impacts of abuse the puretumu torowhānui scheme will take into account when assessing a standard claim (no such assessment being needed for a brief claim). As a starting point, we consider the relevant impacts to include:

• any physical or mental injury or condition (including post-traumatic stress disorder, personality disorders, and depression), whether present at the time of the claim or experienced in the past
• any aggravation of a pre-existing physical or mental injury or condition
• an inability to form or maintain personal relationships or other difficulties with personal relationships, sexual dysfunction, suicidal tendencies, drug, alcohol or other substance addictions, difficulty trusting others, self-blame, eating disorders, hyper-vigilance and anger
• cultural disconnection and impairment
• loss of opportunity, such as an inability (whether chronic or periodic) to get or hold on to jobs, an inability to undertake or complete education or training resulting in underemployment or unemployment, and diminished work capacity.

As stated below, payments made under the scheme should not try to be compensatory. The scheme should not, for example, try to assess lost earnings or compensate for them in a loss of opportunity claim. Instead, it should determine an amount that represents an appropriate acknowledgement of the lost opportunity.

Standard claim process

The puretumu torowhānui scheme should confirm a survivor was at the relevant institution or institutions on the relevant dates. It should also decide whether it was reasonably likely the alleged abuse took place and the claimed harm occurred, and whether it is plausible the abuse caused that harm. The scheme should bear the reasonable costs of any expert report into the survivor’s claim. Ordinarily, the survivor and decision-maker on the claim will meet face to face to go over any questions about the claim. However, the scheme may decide not to hold a meeting if it has sufficient information to make a decision and the survivor has no wish to attend a meeting.

Any meeting should, if the survivor wishes it, include representatives of any relevant participating organisation to hear and understand the abuse and its impact on the survivor. If the survivor wants this, the scheme could also invite any alleged or convicted perpetrator. The process could also include restorative processes between the survivor, the participating organisation or organisations and/or the perpetrator, if the participants agree.

The survivor, if their claim is approved, should receive a full range of entitlements, including counselling and other appropriate psychological care, an apology and help accessing support services, along with a higher financial payment than under a brief claim.

Regardless of which type of claim survivors choose to make, the scheme should not ask them to recount their abuse unless it considers this necessary to make a decision on their claim. Survivors should be able to give the scheme any previous accounts of their abuse in support of their claim, including accounts they gave to any listening service or to this inquiry.

Brief claim process

The puretumu torowhānui scheme should confirm the survivor was at the relevant institution or institutions on the relevant dates, and decide whether it is reasonably likely the alleged abuse took place. The scheme would not ordinarily need to meet the survivor, but should offer to meet the survivor if they wish. There would be no meeting or restorative process between the survivor and organisations or individuals named in the claim. If the scheme approves a brief claim, the survivor should be entitled to counselling and other appropriate wellbeing-related services, an acknowledgment of the abuse and an apology, help to access support services, and a lower financial payment than would be available for a standard claim.

Difference with ministry’s fast-track approach

We have previously discussed the inability of survivors who accepted an offer through the Ministry of Social Development’s (now discontinued) fast-track claims process to seek a more thorough review later on. Our recommendations aim to give survivors the flexibility to choose a faster, less intrusive process without giving up the ability to seek a more extensive review at a later date.

Decisions on oranga services

We consider the scheme should decide whether to approve a brief claim or standard claim and if so decide how much the financial payment should be. It should assist with apologies, as referred to below. The scheme should also put survivors in contact with a navigator, who can work with them on what they need, including oranga services, to restore their mana.

Recommendations

28.  A survivor should have a choice of:

• making a standard claim that takes into account the abuse and its impact
• making a brief claim that takes into account only the abuse
• making a brief claim first, and then a standard claim at a later date.

29.  In both claims, the scheme should work with the survivor to work out what is needed to achieve utua kia ea or to teu le vā / tauhi vā.

30.  The scheme should, in assessing a standard claim:

• make its starting point that it believes a survivor’s account  
• consider the reasonable likelihood that abuse took place and the survivor suffered the impact claimed
• consider any impact that is plausibly linked to the abuse 
• meet the survivor unless the survivor has no wish to and the scheme has enough information to make a decision on the claim
• invite, if a survivor wishes, representatives of relevant organisations and any named perpetrator to attend any meeting to hear and understand the abuse and its impact on the survivor
• notify organisations and individuals named in a claim and invite them to comment in a way that:
  • does not allow them to question the survivor directly
  • does allow the survivor to respond to any comment if the survivor wishes
• ensure survivors will be safe from any retribution before notifying organisations and individuals for this purpose, particularly disabled survivors still in care
• have clear times within which organisations and individuals must respond
• proceed with a decision if they fail to respond in time.

31.  The scheme should, in assessing a brief claim:

• make its starting point that it believes a survivor’s account
• consider the reasonable likelihood that abuse took place
• meet the survivor only if requested.

Next: Puretumu torowhānui outcomes