System still flawed for care abuse survivors

Changes to the Ministry of Social Development’s historic claims process, which provides out-of-court compensation for survivors of abuse in state care, are welcome. But they are modest, small revisions rather than a revamp of a seriously flawed process.

This process has attracted sustained criticism since it was set up in 2008 as a victim-focused alternative to the New Zealand courts which, for reasons including problems of evidence and statutory limits on litigation, are inhospitable to historical claims.

Anticipating examination by the Royal Commission into Abuse in State Care, MSD published two short reviews of the programme; a general review by public policy advisers Allen + Clarke and a Māori-focused review conducted by Donna Matahaere-Atariki and Hera Douglas. Both reviews agree that the historic claims process protracts procedural delays; is overly difficult for survivors; lacks transparency; is culturally inappropriate for Māori; and lacks independence—this is a process in which Ministry investigates itself and determines how much compensation it is willing to pay.

As a response to these concerns, MSD’s recent announcement is largely good news for survivors. However, there are questions as to whether the changes are sufficient to meet the relevant concerns.

Addressing the problem of procedural delays, the ministry proposes to increase the number of staff working on historic claims. That is potentially very good news for survivors. Much of the existing backlog of claims (up to four years on average) results from the lack of staff. However, it remains to be seen how many more staff will be hired and the time frame over which the increase will occur. Clearly the more, and the sooner, the better. Speeding up the process is likely to mitigate the psychological difficulties survivors experience with the process.

A second initiative aimed at increasing processing speed reduces the level of scrutiny applied to each claim. MSD does not describe this reduced scrutiny in detail, but it appears to have two potential components. Firstly, the ministry may limit the scope of its investigation to the claimant’s personal files. This will save time and effort previously expended in amassing other records, such as staff and institutional files. But it is unclear what this means for the majority of claims that cannot be evidenced using those personal files. It is possible that such claims will be taken on face value. That was the approach used in a 2014 initiative that ‘fast-tracked’ 582 settlements.

However, it remains very unclear how MSD will assess applications. The Ministry’s recent response to an OIA request underscores the extent of the problem. While this document ‘lifts the lid’ on some of the process, it redacts all information about how MSD assesses applications and awards compensation. Simply put, survivors do not know how the Ministry will use the information they provide. They don’t know what evidence is relevant to their claim or how much money they might receive. And that lack of information makes it hard for observers to know if the process observes basic norms of procedural justice. Greater transparency would be a significant benefit.

The recently published material commits MSD to “Being more aware of a claimant’s cultural and personal needs”. And that is good.

However, the reports ask for more. More than 50 percent of claimants are Māori. The Matahaere-Atariki and Douglas report recommends integrating whānau in the claims process and ensuring that values of “mana, aroha, whakapapa, whanaungatanga, manaakitanga and pono” underpin the process. To facilitate positive change, it would be relatively easy for MSD to integrate support from hapū and iwi or established Māori service providers, such as Waipareira Trust, into the claims process. That integration would support claimants and facilitate tino rangatiratanga.

Lastly, the proposed changes do not address the problem of independence. Because the historic claims process operates within the Crown’s prerogative, there is no appeal to the courts: MSD retains complete control of the process. Many survivors are suspicious of the Ministry. Their previous experiences of abuse in state care may predispose them to doubt the impartiality of state officials. And the programme’s track record of low payments may reinforce those doubts - the average settlement is around $19,000, which is less than 20 percent of the average in a comparative Irish programme.

MSD is to be commended for moving forward with important changes. In particular, the recent commitment to increasing the speed of the process is likely to be widely beneficial. However, it remains to be seen how significant the proposed changes will be and whether the Royal Commission will view them as sufficient.