Information for Social Welfare claimants

Important note:

The updates below are intended solely for the information of claimants. They are not intended as a substitute for general legal advice to persons who are not clients of Cooper Legal.

DEPARTMENT OF SOCIAL WELFARE ACTION

2^nd Quarter 2011

Introduction

It has been about 7 months since we last forwarded a newsletter regarding progress of the claims. We have been monitoring developments affecting your individual claims which will be addressed in this newsletter. We ask, therefore, that you read this newsletter carefully.

Overview

Since our last newsletter we have:

been continuing to fight the Legal Services Agency (“LSA”) to maintain your funding, including arguing 12 appeals in the High Court. While we had some success, both parties have now applied for leave to appeal some of these appeals to the Court of Appeal
settled more individual claims through either direct negotiation with MSD, negotiations with Crown Law and MSD and/or through assistance from the High Court
continued to maintain pressure on the Government and the Crown to settle the claims out of court, particularly by continuing to provide the Human Rights Commission with our input into its review of the Government’s response to historic abuse claims
met with Crown Law and MSD officials on a number of occasions to discuss the claims, with a view to putting in place a process for resolving most, if not all, claims in due course.

Court action

The report in this newsletter is very different from the reports we have given to you in previous newsletters.

To date, this year only two cases were to be contested by the Crown on the basis that clients were unable to get through the Limitation Act hurdle. Those cases have now both settled, without the need for a decision by the High Court. So far, Crown Law has not stated that any other Social Welfare case will be contested on the grounds of the Limitation Act hurdle. This is good news.

In our last newsletter, we talked about judicial settlement conferences (“JSCs”) – conferences chaired by a High Court Judge whose role is to assist the parties to settle the claim – as a way of dealing with the very large number of claims before the High Court. We advised you that five clients had their cases set down for JSCs in 2011. Several other clients were added to that list. We have already settled four of the cases, prior to the JSCs taking place. We expect to settle at least one other of those cases shortly.

We are working with Crown Law to ensure that new cases keep being set down for JSCs, as other cases settle. Unfortunately, Crown Law has been reasonably slow in agreeing to slotting in new clients, which has meant we have already lost some JSC dates. However, we have a conference before the High Court in early June. At that time, we will ask the Court to set down a number of cases for JSCs, to ensure we are continuing to make progress.

We remind clients that we are allocating JSCs on the basis of working through claims from the date on which you instructed this firm. We are still working through claims for clients who instructed this firm in late 2003/early 2004. For the reasons we set out below, we hope to make much more progress in resolving claims as we progress through this year.

Legal aid

Although we are making progress with your claims, legal aid problems continue. The Legal Services Agency is still trying to withdraw legal aid from as many of you as possible. The Legal Services Agency will use almost any reason to withdraw your legal aid. That means if you do not keep in contact with us, or you do not cooperate with us in terms of the work we need to do on your behalf, then the Legal Services Agency will use that as a ground for withdrawing your legal aid.

In our recent newsletters, we have reported to you on our challenges to the Agency’s refusal or withdrawal of your legal aid to the Legal Aid Review Panel (“LARP”). We have continued to file reviews with the LARP. As we reported in our last newsletter, in the case of clients for whom we have not yet obtained psychiatric reports, most of the decisions have been favourable. In other words, LARP has reinstated legal aid to enable us to obtain an expert report which addresses Limitation Act issues. As we also reported in our last newsletter, we have a very big backlog of reports to obtain and only a very small number of experts who can do them. Having said that, we doubt that we will need expert reports, in most cases, to resolve your claim – as MSD is now openly stating that it will not always rely on the limitation defence as a barrier to resolving a case.

We continue to have difficulties obtaining funding to do work we need to do on your behalf. That includes ongoing difficulties in having the LSA pay for work we have already undertaken for you. We remind you, again, about the “global” invoices. The global invoices are the invoices we send in to the Agency every 3-6 months for work we have done on behalf of the entire client group. Those letters are often confusing. Towards the top of the letter, you will be told what your share is of the global invoice, which will usually be a reasonably small amount (not exceeding a few hundred dollars).

We repeat the advice we have given in previous newsletters and that is you should contact the Agency by telephone or letter if you are unhappy about their decisions. While the Agency invites you to contact this firm, our suggestion is that you contact the Agency, as that will not incur any cost on your file. The telephone number and contact details for the Agency will be on any correspondence you receive from it.

“Out of court” process

We have now settled nearly 40 Social Welfare claims since 2008. Most of those settlements have been within the last 5 month period. We continue to receive settlement offers for individual clients and we have been told to expect more offers, as MSD completes its investigations of the various institutions.

We have had two meetings with Crown Law and MSD officials to discuss how we might speed up the progress in terms of resolution of your claims. We have been advised that MSD is hoping to resolve, as a matter of priority, the claims of as many clients as possible who were in institutional/residential care. That will cover most of the clients of this firm. We have been given no timeframe, as yet, by MSD or Crown Law. What we are working on is our own database from which we can start to progress settlement discussions for as many of you as possible, as soon as possible.

As we have stated in our recent memorandum and in our earlier newsletters, the offers for clients are at a reasonably modest level, in other words often just enough to be acceptable. We repeat that offers at the lower end have been under $10,000. There have been offers made that are considerably higher than that, but that has only been in cases where there has been very strong evidence on the file itself of wrongdoing on the part of MSD, and/or where the case has been close to trial and we have been able to provide strong supporting evidence.

Our last two newsletters have referred to our contact with the Police, who were investigating two former Epuni staff members in respect of sexual assault allegations. Both staff members were charged. One of the two staff members was found guilty at trial in respect of most of the charges against him, after he had pleaded not guilty. The second staff member pleaded guilty to all but one charge. The first staff member has been sentenced to 2 years and 6 months’ imprisonment. The second staff member is to be sentenced in July 2011.

We provide this information to illustrate that the Police now appear to be taking historic abuse claims seriously, but only where there are at least 2-3 complainants in respect of the same former staff members, or there is other documentary evidence of offending. We continue to be approached by the Police to assist with prosecutions. We are now considerably more cautious with what assistance we provide – given our experience with the last two trials and the requests made by lawyers for the accused to have access to our records. Having said that, where perpetrators are convicted, the chances of settling claims which include allegations about the convicted perpetrator are increased.

Human Rights Commission and United Nations

The Human Rights Commission (“HRC”) has still not issued its report into the Government’s handling of your claims. We have been advised that completion of the report is not far away, but we have no deadline for its completion. What we can say is that the Chief Human Rights Commissioner has stated publicly that an independent commission should be set up to evaluate, if necessary investigate, and then take whatever action is required, including payment of compensation, or an apology or acknowledgement to those who have been abused in State care. The Chief Human Rights Commissioner has also echoed this firm’s concerns about the CCRT. As we have observed, while the CCRT has some positive features, it is still within the Ministry. What needs to be set up is a body that is independent of Government.

Listening and Assistance Service

We have referred to the Confidential Listening and Assistance Service (“CLAS”) in our last three newsletters. The CLAS is not the same as the Care, Claims and Resolution Team. The CLAS is chaired by Judge Henwood. Its function is to hear your story and assist you to access services, including counselling services, access to work schemes, relationship counselling and assistance in accessing your records. We remind you that the CLAS will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation.

We know that increasing numbers of you are having contact with the CLAS. We encourage you to do so. The contact details for the CLAS are as follows: PO Box 5939, Lambton Quay, Wellington 6145, Tel. 0800 356 567, or you can look at their website at www.listening.govt.nz. We understand that the Service will be travelling throughout New Zealand.

Closing files

We are continuing to close files where clients have changed their contact details and we have not been updated with new contact details for 6 months or more. It is essential that you let us know if you change address and/or telephone number. We do not obtain that information from the LSA or the Department of Corrections. If you do not tell us your new contact details, we have no way of finding you. For that reason, we are now obtaining an alternative contact address from you, in the event that you forget to give us an updating address when you move. You should nominate a person with whom you have regular contact and who will know where you are at any given point in time.

For those clients with whom we have lost contact, we continue to apply to the Court to withdraw as the lawyers on the record, where we have filed that client’s claim in the High Court. The High Court requires that we advertise such applications in newspapers closest to that person’s last known residence and publish the client’s last known address. In cases where we do have an address and/or an email contact, then the High Court has allowed us to serve applications at that last known address, or by email. We are also closing off files where clients will not cooperate with us in terms of the work we need to do to protect your claim. In most cases, we can reach agreement with a client as to how to proceed. In some cases, clients will not or cannot give us instructions on how to go ahead with their claims. In those cases, we have no option but to withdraw as the lawyers.

Mail from us

We repeat that it is important you respond to any mail that we send to you which requires some input from you. This is particularly important if your legal aid has been withdrawn. In that case, we will need you to complete forms and return them to us. That will also be the case if we are unsuccessful at LARP in overturning the Agency’s decision to withdraw your legal aid and we consider you should appeal that decision. If you do not return forms when we request them from you, in the event your legal aid has been withdrawn, then we will take it that you do not wish us to fight the decisions of the Legal Services Agency and we will therefore proceed with taking steps to close off your file in this office.

For many of you, we are still working through draft documents that we have sent to you and which we need to complete for your case. It is important that you respond to our requests for you to provide information and/or sign documents we send to you. It is also important that you follow the instructions we have given you.

As we are working to settle more and more claims, we rely heavily on the fact that many of you were in the same institutions, at the same time, and make very similar allegations against the same people. For us to present a strong case for each individual, it is very helpful to rely on statements made by others who had the same or very similar experiences.

Once again, we also remind you that when we send you documents and letters, it is sensitive and confidential information. To that end, once again, we ask that you do not talk about the information we have provided to you, with others who were also in DSW care. That includes email and social networks.

We also remind you that each client’s individual claim is at a very different stage of progress. What is happening on one person’s claim will not be the same as what is happening on another, in terms of their individual progress.

Contact with this firm

Our staff remains the same - Sonja, Katie, Sam, Courtney, Rebecca and Susannah. As per usual, Rebecca or Susannah will typically be your first port of call. Where Rebecca or Susannah are unable to assist you, they will be able to refer you to one of the solicitors.

We repeat, as we have stated in other newsletters, that we try to keep your costs down as much as possible. That will mean that we may not reply to every letter you send in to us. It may also mean that we do not return some toll calls, particularly where you are simply looking for an update. We repeat that we will be in touch with you, on an individual basis, regarding any important news that affects your claim.

This is the first year we have felt as if we are making some real progress with your claims. We are grateful for your ongoing work with us to achieve an outcome for you. We do know that some clients find it too hard to continue with their claims. If you feel like that, then please contact us. We will discuss with you whether there are any alternative ways in which we might be able to assist you to achieve a resolution of your claim that meets your needs and will enable you to put the issues of your past behind you. If you are certain you do not wish to continue, we will close your file.

Summary

We are finally starting to feel that we are moving forward. We have had two positive meetings with Crown Law and MSD staff, in which we have felt that we are making progress in working to find a way to resolve your claims – hopefully in the not too distant future. We have settled over 35 claims, with more to settle. We have had no cases struck out or discontinued because of the Limitation Act bar since the beginning of 2010.

Having said that, we are still battling with the Legal Services Agency. As we said, above, the Legal Services Agency continues to maintain its negative view about these cases. We believe it is determined to stop this work, in whatever way it can. We are fighting the Legal Services Agency in its attempts to close down funding for your claims. We also continue to try and persuade the Agency that we are making progress and that it should support us.

We remain committed to achieving an outcome for you that will recognise the abuse you have suffered and will ensure that you receive an acknowledgement and compensation for that. We continue to work hard to achieve that outcome. Finally, we are making some progress. Once again, we thank you for your continued support for our work. We are hopeful that it will result in positive outcomes for you, as an individual, in the not too distant future.

Regards, Sonja & Team

DEPARTMENT OF SOCIAL WELFARE ACTION

3rd/4th Quarter 2010

Introduction:

It has been about 7 months since we last forwarded a newsletter regarding progress of the claims. We have been monitoring developments which affect your individual claims which will be addressed in this newsletter. We ask, therefore, that you read this update carefully.

Overview:

Since our last newsletters we have been:

continuing to fight the LSA (“LSA”) to maintain your funding;
denied leave to appeal to the Supreme Court (New Zealand’s highest court) in a Social Welfare case, to deal with important legal issues for historic abuse claimants, because of the difficult factual findings in that particular case;
starting to settle some individual Social Welfare claims (at this stage not many) through either direct negotiation with MSD, negotiations with Crown Law and MSD and/or through assistance from the High Court; and
continuing to maintain pressure on the Government and the Crown to settle the claims out of court, particularly through providing the Human Rights Commission with our input into its review of the Government’s response to historic abuse claims.

Court action:

In our last newsletter, we advised you that we had appealed to the Court of Appeal against the decision of the Wellington High Court dealing with two brothers who were under DSW care. We received the Court of Appeal’s decision on 23 April 2010. The decision went against our clients, mainly because of the findings of fact in respect of the Limitation Act issues for them, by the Judge in the High Court. As noted above, we did endeavour to appeal the Court of Appeal’s decision to the Supreme Court, however we were refused leave. While the Supreme Court acknowledged that both brothers had undoubtedly undergone regrettable suffering during their childhood and adolescence, the Court held that the Limitation Act operated to stop them obtaining compensation.

We were very disappointed with the decisions from both the Court of Appeal and Supreme Court. We are now reviewing whether to take the brothers’ claim to the United Nations, as that is our only option because we have exhausted all our options through the New Zealand courts.

As we said in the previous newsletter, two DSW cases were scheduled to go to trial in 2010. Another three cases were scheduled to go to trial in 2011. We have now settled the two cases scheduled for 2010, as well as two of the three cases scheduled for trial in 2011. The first case, in which our client was in Hamilton Boys' Home and Kohitere, was settled shortly before that trial was to start. By that stage, we had received documents about Kohitere and Hamilton Boys' Home. We had also received the statements of former staff members who, in the main, denied any wrongdoing. Having said that, some of the former Kohitere staff members did acknowledge that they “may have” assaulted boys and/or that they may have seen other staff members assault or otherwise mistreat boys. We hope that we may be able to settle the claims of other clients who were in Kohitere, in due course, in light of these helpful statements.

The second case we have settled involved foster care. The facts of that case related to the 1950s and to a particular foster home. We do not have any other clients who were in that foster home who might benefit from the outcome of that case, however it does show we can settle cases where there are limited witnesses.

Judicial Settlement Conferences

There has been an important new development that may lead to us being able to settle more cases. The High Court recently asked that we trial judicial settlement conferences (“JSCs”) (conferences chaired by a High Court Judge whose job is to assist the parties to settle the claim), as a way of dealing with the very large number of claims before the High Court. This suggestion was made because of the High Court’s observation that many of you have suffered harm as a result of your experiences in care and that you should receive some compensation for that. We have now trialled three Social Welfare clients’ cases through the JSC process, including the foster home case referred to above, and have settled each of those cases. Only one of those cases involved a residence, in that case Campbell Park School (Otekaike). The other two cases involved abusive and/or neglectful parental and/or foster care.

We have already advised 5 other Social Welfare clients that their cases are set down for JSCs in 2011. Unfortunately we cannot progress the JSCs any quicker than that, as we have to do a large amount of preparation work, including receiving in all of the Department’s documents about the client and the placements they resided at. We also have to prepare statements on behalf of our clients, as well as witness statements and expert Limitation Act statements. In addition, the Crown has to prepare the same information, which we have to exchange well in advance of any JSC. We are hopeful, based on the success of the first 3 JSCs, that we may be able to start settling more DSW claims through this process. We will keep you advised, but warn that this is still a lengthy and time-consuming process.

We still have a number of DSW cases that are being contested by the Crown on the basis that clients are unable to get through the Limitation Act hurdle. As we stated in our last newsletter, in each of those cases we are required to provide to the Crown all relevant documents. We are then required to file written evidence setting out the reasons why the claim was not brought until it was. That invariably includes an expert report from a psychiatrist and/or psychologist.

For a small number of DSW clients, this year, our psychiatric evidence has stated that the clients have brought their claims too late. For those clients, we have had no option but to discontinue their claims in the court. For the reasons we state later on in this newsletter, that may not necessarily be the end of matters for those clients, as we are hopeful there may yet be a process set up to deal with our clients’ claims out of court.

Legal aid:

We have referred to our problems with legal aid in the last few newsletters. Those problems are continuing. The LSA has withdrawn aid for a large number of our clients this year. In total, the LSA has withdrawn aid for a large number of our DSW clients this year. In total, the LSA has withdrawn aid on over 80 DSW files so far.

We advised you in our last newsletter about the review of legal aid. The Government is now implementing a change whereby the LSA will be folded into the Ministry of Justice. We do have real concerns about what that will mean for the historic abuse claims, as your claims are against the Attorney-General. We will be making submissions to the Government about the need to ensure that your claims are dealt with fairly and with as much independence from Government as possible. We will keep you advised of developments.

As in previous newsletters, we encourage you to contact the LSA by telephone or letter, if you are unhappy about the LSA's decisions. We also understand that the LSA may have begun sending you out copies of all correspondence which it sends to this firm. A lot of that correspondence is incomprehensible and/or difficult to understand. While the Agency invites you to contact this firm, our suggestion is that you contact the LSA, as that will not incur cost on your file. The telephone number and contact address for the Agency will be on any correspondence you receive from it.

Please note: if we do not hear back from you promptly confirming that we should review any decision to withdraw your legal aid, or appeal a LARP decision upholding the withdrawal of your legal aid, or if we have no way to contact you, then we will not take any further steps on your file except to close it.

“Out of court” process:

As advised above, and in our previous newsletter, we are still receiving “one-off” offers to settle individual clients’ claims. It is not always clear to us why MSD looks to settle one client’s claim, but not others. We are hopeful that our progress over the course of this year in settling some claims will continue and that we will be able to settle more and more of our clients’ claims. We remain of the view that some cases will still need to go to trial to test the facts and/or the law.

Our last letter referred to our contact with the Kapiti Police, who were investigating two former Epuni staff members in respect of sexual assault allegations. We advised that we had assisted the Police in providing information from our clients’ files with our clients’ consent and cooperation. We note one caution in that regard. The lawyer for one of the former Epuni staff members who has since been charged (and will shortly come to trial) has asked for disclosure of all information we hold on behalf of the clients involved in the trial, in respect of their time in Social Welfare care. We have had to provide that information, on a confidential basis, to the District Court Judge who is dealing with the trial. We have made strong submissions objecting to the disclosure of that material, on the grounds it was given to us in confidence. We are still awaiting the outcome of that argument and will keep clients advised. This may happen in any future criminal trials of former staff members.

Care Claims & Resolution Team:

It continues to come to our attention that a number of clients have contacted, or have been contacted by, members of the Care Claims and Resolution Team run by MSD, which is the defendant in the DSW cases. As we stated in our last newsletter, it is very important that you discuss, with us, any contact that you have with that team – preferably before you do so. While we may not obtain funding to attend meetings with you, we certainly encourage you to involve us at the point at which MSD may look to settle your claim.

We make two points. First, you are liable to pay back any fees paid to this firm by the LSA out of any settlement funds you receive. We have, in the past, been able to negotiate with MSD so that they have paid a contribution to those costs, as part of any settlement arrangement. If we are not advised of the settlement of your claim and therefore do not have the opportunity to negotiation a contribution to your fees, the LSA will be able to simply “claw back” their repayment amount from the settlement funds.

Secondly, we have information from MSD that clearly shows clients who are represented by lawyers have better outcomes of settling, and for more, than those who do not have legal representation.

Human Rights Commission and United Nations:

You will be pleased to learn that the United Nations Committee Against Torture (“UNCAT”) is still monitoring the New Zealand Government’s handing of your claims. The Government provided a report to the UN in May 2010, which suggested that the claims were being handled appropriately. We replied to that report at the end of June 2010. We were strongly critical of the Government’s report – pointing out numerous problems with the way in which the current approach to historic abuse claims is prejudicing our clients.

As stated above, the Human Rights Commission (“HRC”) is still underway with its own investigation into the Government’s handling of your claims. For your information, we have provided a great deal of information to the HRC about our concerns with the way in which your claims are being handled – not only by the Government, but also by the Government agencies, including the LSA, Crown Law and even the High Court.

We have seen a draft report, which we hope will be finalised within the next month or so. We had delayed issuing this newsletter in the hope that the HRC report might have been finalised by now. We are hopeful that the report, when issued, will be reasonably critical of the Government’s handling of the historic abuse claims. We are also hopeful that there will be a strong recommendation made that the Government should set up a process “out of court” to deal with the claims – as has been the case in other Commonwealth countries. Once the report has been published, we will provide a synopsis of the important points on our website. We will also eventually issue a newsletter outlining the HRC’s findings and recommendations.

Listening and Assistance Service:

We have referred to the Confidential Listening and Assistance Service (“CLAS”) in our last two newsletters. As we have advised you, that Service is able to hear your story and it is also able to assist you to access counselling services, both to tell your story and to deal with the abuse you have suffered. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation.

In the event that you have lost the contact details for the CLAS, they are as follows: PO Box 5939, Lambton Quay, Wellington 6145, Tel. 0800 356 567, or you can look at their website at www.listening.govt.nz. We understand that the Service will be travelling throughout New Zealand and will be including visits to the prisons. If you are in prison and they will not allow you to telephone the 0800 number, please ask the prison to telephone us and we will confirm that you should be permitted to make that call.

Research:

In our last newsletter we referred to Dr Elizabeth Stanley’s research on violence within Social Welfare homes. She continues to make progress in that regard and has interviewed a number of clients and carried out extensive research. In mid 2010, Dr Stanley travelled to Ireland to present her findings, so far, on New Zealand’s handling of the historic abuse claims. Her lecture “Children, Social Welfare and State Violence in New Zealand” was well attended. The audience, which consisted mainly of Irish survivors of historic abuse, youth workers, lawyers and academics, were shocked to hear about the extent and nature of abuse suffered in New Zealand and were disappointed to learn of the Government’s lack of action in that regard. A number of the Irish claimants have passed on their regards to you, as well as their encouragement that those pushing for recognition should continue with their quest to be heard and acknowledged.

We look forward to receiving the outcome of Dr Stanley’s research, which is continuing through 2011. If you would like to be interviewed by Dr Stanley, she is keen to hear from more DSW claimants. The address to write to is: Elizabeth Stanley, Institute of Criminology, Victoria University of Wellington, PO Box 600, Wellington 6140.

Closing files:

We remind clients that we will close files where clients have changed their contact details and we have not been updated with new contact details. It is very important that you let us know if you change address and/or telephone number. We do not obtain that information from the LSA or the Department of Corrections. If you do not tell us your new contact details, we have no way of finding you. Where we have lost contact with a client and we have filed that client’s claim in the High Court, we apply to the Court to withdraw as the lawyers on the record. The High Court requires that we advertise these applications in newspapers closest to that person’s last known residence and publish the client’s last known address. In cases where claims have not been filed in court and clients have not responded to our requests for contact, we send in a final invoice to the LSA and close off that client’s file. Given the legal aid difficulties, it will be virtually impossible for us to re-open a client’s file in that circumstance.

Mail from us:

We remind you that it is important to respond to any mail that we send to you which requires some input from you. This is particularly important if your legal aid has been withdrawn. In that case, we will need you to complete forms and return them to us. That will also be the case if we are unsuccessful at LARP in overturning the Agency’s decision to withdraw your legal aid and we consider you should appeal that decision.

We remind you that there will be other cases where we need you to work through draft documents that we have sent to you and which we need to complete for your case. Where we are drafting evidence for you, we will need to send completed documents to you to be formally signed and returned to us. It is important that you respond to our requests for you to help us, and that you follow the instructions we have given you.

It is also important, when we do send you documents and letters, that you understand it is sensitive and confidential information. To that end, we ask that you do not talk about the information we have provided to you, with others who were also in Social Welfare and/or psychiatric hospital care. This includes email and social networks. There is a very important reason for that. MSD and/or Crown Law are very suspicious about the credibility of many of the claims being brought. If there is evidence that you have been discussing information we have been providing you, with others who have been in Social Welfare care, then you run the risk of your credibility being damaged if that comes to light.

In addition, we note that each client’s individual claim is at a different stage of progress. What is happening on one person’s file will not be the same as what is happening on another, in terms of individual progress. The purpose of these newsletters, however, is to bring every client “up to speed” with the progress of work on behalf of the whole group.

Contact with this firm:

Our staff has slightly changed again. Our staff are now Sonja, Katie, Sam, Courtney, Bexx and Susannah. We are always very busy progressing work. As per usual, Bexx will typically be your first port of call. We remind you that she has a good working knowledge of every client’s file and is a qualified legal executive. Where Bexx is unable to assist you, she will be able to refer you to one of the solicitors.

As we have stated in other newsletters, we do try to keep your costs down as much as possible. That will mean that we may not reply to every letter you send in to us. It may also mean that we do not return some toll calls, particularly where you are simply looking for an update. We will let you know, via letter or telephone call, of any important news that affects your claim.

We do know that many of you are frustrated about what seems to be a lack of progress with your claims. So are we. We are working hard to try and change that and we are making some progress, as we have set out in the newsletter. We ask that you bear with us. If you are finding it all too hard, however, just let us know and we will take steps to close off your file with us. We suggest, in that case, that you keep an eye on our website for news about out of court developments that may arise as a result of the HRC report. We will be sure to add to the site the outcome of the HRC report, as well as any information which is of interest to the client group.

We also encourage you to complain to your local MPs, the Ministry of Justice (Simon Power), and also the Human Rights Commission about the Government’s lack of progress in dealing with historic abuse claims.

Summary:

To summarise, it has been a reasonably difficult 7-8 months. The LSA has escalated the withdrawal of our clients’ legal aid, as is evident from the newsletter. On the bright side, however, we have the first sign that there may be some movement towards settlement of some clients’ claims. In that regard, we refer to the agreement to trial the claims through the JSC process in the High Court. We can only hope that we will start settling more of your claims and we will keep you advised as to progress.

We are also pleased that the HRC should soon issue its report into the Government’s handling of your claims. We are hopeful that the report, which will not only go to the United Nations, but also to the Government, will finally result in a proper process being set up to provide you with compensation and services for the abuse you have suffered in care.

We want to let you know that although we are a small team, we are very determined to achieve an outcome that recognises the abuse you have suffered and ensures that you receive an acknowledgement and compensation for that. We work hard to achieve that outcome and we do feel that we are now making some progress with that. Thank you for your continued support for our work, which we hope will produce positive outcomes for you in the not too distant future.

Regards, Sonja & Team

DEPARTMENT OF SOCIAL WELFARE ACTION
1st Quarter 2010

Introduction:

It has been about nine months since we last forwarded a newsletter regarding progress of the claims. There have been recent developments, good and bad, which affect your individual claims. Please read through this newsletter carefully.

Overview:

Since our last newsletter we have been:

to the Court of Appeal in relation to the case heard at the High Court at Wellington in relation to two brothers who were under DSW care;
continuing to vigorously resist the Legal Services Agency's ("LSA") attempts to withdraw your funding;
continuing to file individual claims in court; and
continuing to maintain pressure on the Government and the Crown to settle the claims out of court, through domestic and international political means, including the United Nations.

Court action:

In our last newsletter, we advised you about the appeal to the Court of Appeal against the decision of the Wellington High Court dealing with two brothers who were under DSW care. The appeal was heard in early August 2009. We have not yet received a decision. We anticipate that some of the delay in receiving a decision is because the Supreme Court (New Zealand's highest court) is considering some issues in other cases which were also raised in this firm's appeal. We will issue a further newsletter once we have the Court of Appeal's decision and we have reviewed the implications of that.

As we said in the previous newsletter, two DSW cases were set down for trial at the end of 2009. Another three matters were set down for trial in 2010 and a further two have been set down for trial in 2011. The Crown settled the case which was to be heard at the end of 2009. That involved a client who had been on a programme in the late 1990s, which was closed down after complaints. It is likely that we will settle claims for other clients who were on the same programme.

Of the three cases set down for 2010, one will not be going ahead. The first case, in which our client was in Hamilton Boys' Home and Kohitere, will be starting in mid April 2010. The third case, involving foster care, is scheduled to go ahead in late November 2010. We will keep you advised of progress.

An increasing number of DSW cases are being contested by the Crown on the basis that clients are unable to get through the Limitation Act hurdle. In each of those cases we are required to provide to the Crown, all relevant documents. We are then required to file written evidence setting out the reasons why the claim was not brought until it was. The evidence invariably includes an expert report from a psychiatrist and/or psychologist. If you are one of the clients who we have notified of such a hearing, it is important that you work closely with us to obtain the documentation we need for you and also to obtain the written evidence we need.

We have referred, in recent newsletters, to a new section being included in all claims being filed, referring to a series of international and New Zealand human rights instruments, including the Bill of Rights Act, the United Nations Convention Against Torture and the Universal Declaration of Human Rights. We have now run one test case arguing this matter. We lost the issue at High Court level. Due to the complexities of that particular case, we are not appealing the decision. We have, however, argued the issue in another case that was heard in the High Court at the end of 2009. Depending on the outcome of that case, we may look to address the issue in the appellate courts, including the Court of Appeal and/or the Supreme Court. We will keep you advised of progress in relation to that.

Legal aid:

It is fair to say that we are still having legal aid problems, which we have told you started at the beginning of 2008. We are also experiencing increasing difficulties with the High Court in delaying cases where legal aid has been withdrawn. In some cases, that has meant clients have been forced to discontinue their claims.

For those clients whose applications for an initial grant of legal aid have been declined, in particular, we have undertaken work to have those decisions reviewed by LARP. If you are one of those clients, you should be aware that until we have a decision from LARP, the only work we can undertake on your behalf is attempting to obtain a grant of aid. We will be in touch with you once we have an outcome.

As some of you may be aware, Dame Margaret Bazley undertook a review of the Legal Services Agency in mid 2009. Her report was released at the end of 2009. Dame Margaret Bazley identified serious problems with legal aid, including the cost of legal aid, the inability of some clients to access legal aid who should have it and also major communication difficulties between the LSA and lawyers. As a result of Dame Margaret Bazley's report, the Government is implementing a change whereby the LSA will be folded into the Ministry of Justice. Steps are already being undertaken to effect that change.

In the context of your claims, Dame Margaret Bazley stated that the Government should look to set up a process for resolving your claims out of court. That is a very important recommendation and one which, we hope, the Government will give serious consideration to. In that regard, we refer to the developments with the Human Rights Commission, which are addressed further on in this newsletter.

"Out of court" process:

As advised above, and in our previous newsletter, we are still receiving "one-off" offers to settle individual clients' claims. This is only where a caregiver or staff member has been convicted of a sexual assault in respect of the client, or there is strong evidence of sexual assault by a caregiver or staff member or other serious wrong-doing, which is evident on the client's file. Virtually all other claims are rejected. We note that the offers we have had are at a very modest level, in other words just enough to be acceptable. Accordingly, you should have no expectation of a high settlement offer being made if you embark on this process, if any offer is made at all.

In our last newsletter, we also advised that we had been contacted by the Kapiti Police, who were investigating two former Epuni staff members in respect of sexual assault allegations. We have assisted the Police in providing information from our clients' files with our clients' consent and cooperation. Once again, if you wish to be added as a complainant, then please contact us and we can provide you with further information.

We repeat the information we provided in our last newsletter, that the Police have expressed an interest in investigating staff who sexually assaulted our clients from Epuni, in particular, but it would not be limited to that institution. Accordingly, if you do wish to make a complaint to Police about sexual abuse you suffered as a child in care, then please let us know and we can direct you to those at Police who will be able to help.

MSD Care Claims and Resolution Team:

We are aware that a number of clients have contacted, or have been contacted by, members of the Care Claims and Resolution Team run by MSD, which is the defendant in your case. It is very important that you discuss, with us, any contact that you have with that team - preferably before you do so. This is for two reasons. First, any contact that you have with that team may negatively affect your case. Secondly, all of these claims involve complex legal issues. It is important that you have legal advice from this firm before you attend any meeting with that team and/or discuss any settlement options.

Human Rights Commission & United Nations:

In our last newsletter, we advised you that we had complained to the United Nations Committee Against Torture ("UNCAT") in respect of the refusal of successive New Zealand Governments to put in place any process for resolving your claims out of court. We are aware that the Human Rights Commission ("HRC") has been monitoring the Government's progress and intends to report to UNCAT in May of this year.

To that end, we report that the HRC is currently undertaking its own investigation into the Government's handling of your claims. The HRC will focus, in particular, on comparing the New Zealand approach with that of other Commonwealth countries. We have already observed that in many Commonwealth countries, Inquiries have already been undertaken into the abuse of children in care. Compensation and restitution programmes have been set up to address those clients' claims.

We have already provided some information to the HRC as part of its investigation process. We will continue to provide further information, if requested, by the HRC. We will also continue to report to the United Nations in respect of the issues we are facing in progressing your claims.

Research:

In our last two newsletters, we have referred to the work being done by David Cohen (journalist and writer) and Dr Elizabeth Stanley from Victoria University. David Cohen has now completed his work, we understand, and hopes to publish his book during the first half of this year. Dr Stanley is now interviewing clients who have agreed to be interviewed by her for the purpose of her research. She will be presenting two papers in Ireland in early 2011, when she will report on her findings as to New Zealand's handling of claims brought by those who have been abused in State care. We look forward to receiving the outcome of her research.

Listening and Assistance Service:

We referred to the Confidential Listening and Assistance Service ("CLAS") in our last newsletter. We have advised you that the Service will listen to your story. It will not be able to provide you with an apology, or an acknowledgement as to what happened to you, or any compensation. We have already advised you that the Service is able to assist you to access counselling services to help you tell your story.

Since the CLAS has been up and running, we have had meetings with the Chairperson, Judge Henwood, and the Chief Executive, Gordon McFadyen. We have been advised that, in addition to accessing counselling services, the CLAS has also assisted clients with: accessing records (including MSD and Police records); finding employment; reuniting families; assisting at Parole hearings; accessing parenting courses and the like. To date, we have been impressed with the way in which the CLAS has endeavoured to work with our clients to address their issues. We have also been impressed that the Service understands that it cannot provide one of the most important outcomes that you need and that is an acknowledgement that you suffered abuse in care and that you should receive an apology (and compensation) for that.

Closing files:

We have stated in a number of newsletters that we will close files where clients have changed their contact details and we have not been updated in that regard. Accordingly, it is important that you let us know if you change address and/or telephone number. Where we have lost contact with a client and we have filed that client's claim in the High Court, we apply to the Court to withdraw as the lawyers on the record. Our applications to withdraw as counsel are advertised in national newspapers through New Zealand. In cases where claims have not been filed in court and clients have not responded to our requests for contact, we send in a final invoice to the LSA and close off that client's file. It will only be in rare cases that we will re-open a client's file in that circumstance.

Mail from us:

It is also important that you respond to any mail that we send to you which requires some input from you. In particular, we may need you to complete some forms and return them to us.

We may also need you to work through draft documents that we send to you and which we need to complete for your case. In some cases, once we have completed documents, we will need to send them to you to be formally signed and returned to us. It is important, in each of those situations, that you respond to our requests for you to help us, as soon as possible.

It is also important, when we do send you documents and letters, that you understand it is sensitive and confidential information. To that end, we ask that you do not talk about the information we have provided to you, with others who were also in DSW care. This includes email and social networks. There is a very important reason for that. If you discuss information we have been providing you with others who have been in DSW care, then you run the risk of your credibility being damaged if that comes to light.

Contact with this firm:

You should all now be aware that we are known as Cooper Legal. We have a slightly increased number of staff, namely Sonja, Katie, Sam, James, Courtney, Bexx and Sophie. We continue to be very busy progressing work. As per usual, Bexx will typically be your first port of call. She has a good working knowledge of every person's file and is now qualified as a legal executive. Where Bexx is unable to assist you, she will be able to refer you to one of the solicitors.

Once again, we remind you that we are trying to keep your costs down as much as possible. Please be reassured that we will keep you up to date via newsletter, or individual letter, with any important news affecting your claim.

One of the ways in which you will be able to keep up to date with all developments is by keeping your eye on the website, if you have internet access. We will be sure to add to the site any information which is of interest to the client group. That site can be found at sonjacooperlaw.co.nz.

We are pleased that we have been able to report in this newsletter that the HRC is formally investigating the Government's management of these claims. We are also pleased that the United Nations is monitoring progress in that regard. We are hopeful that we will have some success, at least, when the Court of Appeal delivers its decision. If we do not, as we have already said, we will look to appeal to the Supreme Court.

You should be reassured that we continue to work hard in the office to progress your claims. Where we can, we look to settle clients' claims and progress them through to some resolution. We are making some progress, although that is very slow and not particularly satisfactory. Nevertheless, progress is being made and we can only continue to work to ensure that progress continues to be made.

Regards, Sonja & Team

Important note:
This newsletter is intended solely for the information of claimants. It is not, and is not intended as a substitute for, legal advice.