Source: Radio New Zealand
Lydia Oosterhoff who is a human rights lawyer and principal at Wellington law firm Cooper Legal sought a judicial review of the MSD’s decisions relating to three people. Jimmy Ellingham
- Court ruling shows Ministry of Social Development was not following its own policy when it turned down abuse in care compensation claims
- Lawyer who took court action says the decision is vindication for survivors unable to tell their stories
- Ministry says it is considering the court judgment.
A senior human rights lawyer has welcomed a court ruling that found a government department responsible for considering claims for abuse in care is not following its own assessment policy correctly.
Justice Dale La Hood has ruled the Ministry of Social Development (MSD) was wrong to strike out at the first hurdle claims for compensation for abuse suffered by three people, after the trio had come to the attention of social workers as youths.
The three, who have name suppression, say they were subjected to physical or sexual abuse and the former Department of Social Welfare did not act when concerns were raised.
Lydia Oosterhoff, principal at Wellington law firm Cooper Legal, sought a judicial review of the ministry’s decisions and said Justice Le Hood’s ruling, which came after a hearing in the High Court at Wellington, was extremely significant for people who had previously had the door slammed shut in their faces.
“Outside of the three plaintiffs, this is an issue that we’ve come up against time and time again.”
Claim rejections ‘unlawful and invalid’
The three said Social Welfare failed to look into the abuse they suffered, in the 1990s and 2000s, when it became aware of concerns.
Two of the three were in the youth justice system. One said he suffered physical abuse and neglect at home, and the second said he was abused physically at home by his father and later abused sexually by a “sexual predator”. The two say Social Welfare was informed of what was happening, but did not investigate.
The third person said he was sexually abused by people in positions of influence or control when he was a child. He said Social Welfare was told about the abuse and, again, did not act.
The three filed claims for redress in 2023.
Justice La Hood ruled the ministry’s decisions to decline to even consider the applications were “unlawful and invalid”. He has ordered the ministry to now consider them.
He said the decisions reached by the ministry that the claims should not be investigated were at odds with its own guidelines on settling claims.
Applications were considered in two parts. For the first, claimants needed to show they had been in the care or custody of Social Welfare, or had come to its attention. For the second they needed to have believed they were harmed as a result.
The ministry was interpreting this harm as having to be attributed to Social Welfare’s actions – or lack of action – but Justice La Hood said this was not correct and was at odds with the department’s own policy.
Justice La Hood said the ministry’s decision that the claims should not be investigated were at odds with its own guidelines. File picture. RNZ / Alexander Robertson
Judgment ‘a vindication’
Oosterhoff said at least 29 of the firm’s other clients would be covered by Justice La Hood’s ruling, as they had had claims turned away at the first hurdle.
The Royal Commission into abuse in care had described survivor stories of abuse and neglect as taonga.
“What we’ve said to the court is these individuals are coming to MSD, holding their taonga, and MSD is not opening the gate to them,” Oosterhoff said.
She assumed people not represented by lawyers would have also had their claims turned away in the same circumstances, so Justice La Hood’s ruling could affect a large number.
“This judgment is a vindication not only for the three applicants, but for every person who has gone to MSD in an attempt to tell MSD about their experiences when they were known to, or in Social Welfare care, which they believe caused them harm… and have been told, ‘We’re not listening to you, go away.’”
Oosterhoff said the decisions to not even consider applications for redress were made by people who were not trained social workers or lawyers, but they were affecting people’s legal rights.
“[The court ruling] says that they now had the right to go through the gate. They have the right to tell MSD why they considered that they are eligible for redress.”
RNZ asked the ministry if it would appeal the ruling and what the effect of it would be.
“We have received the High Court’s decision and are considering it,” said Linda Hrstich-Meyer, its general manager for historic claims.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand