Review of the Victims of Crime Assistance Act 1996: Supplementary Consultation Paper (html)

9. Review, variation and refund of awards by VOCAT

Introduction

9.1 This chapter discusses the process for review of awards of financial assistance under the Victims of Crime Assistance Act 1996 (Vic) (the Act).

9.2 This chapter also considers when the Victims of Crime Assistance Tribunal (VOCAT) may vary an award or determine that an award needs to be refunded.

9.3 This chapter relates to issues raised in the first, fourth and eight matters in the supplementary terms of reference which concern whether:

• the Act can be simplified to make it easier for applicants to understand all their potential entitlements and quickly and easily access the assistance offered by the scheme without necessarily requiring legal support

• the time limits, categories of assistance and structure and timing of awards are appropriate and are adequate to account for harm, including harm caused by multiple acts such as family violence, or where there is a significant delay in reporting a crime

• any processes, procedures or requirements under the Act cause unnecessary delay to the provision of assistance to victims of crime.

9.4 Questions posed in this chapter relate both to the extent to which the provisions in the Act related to review, variation and refund are clear and working as intended, as well as whether these provisions are still appropriate.

Review of VOCAT decisions

9.5 Any person whose ‘interests are affected’ can apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a final VOCAT decision.^[1] Reviews may relate to:

• VOCAT refusing to make an award of assistance

• the amount of assistance awarded

• VOCAT refusing to vary an award

• the amount of assistance awarded when varying an award

• a decision that a person is required to make a refund to VOCAT

• the amount VOCAT determines must be refunded.^[2]

9.6 An application for review must be made within 28 days after the final decision is made.^[3]

9.7 A person may not apply under section 59(1) for review of a final decision if the final decision was made by a judicial registrar as a delegate of the Tribunal.^[4] Instead, a review of a delegated Tribunal decision is to be conducted as a hearing ‘de novo’—that is, heard at a new hearing as though the first decision had not been made.^[5]

9.8 In practice, those affected for the purposes of section 59 by VOCAT decisions are usually applicants, and so reviews usually relate to matters like VOCAT refusing to make an award, the amount of an award or VOCAT refusing to vary an award.^[6]

9.9 There are relatively few reviews, with only 11 applications for review made to VCAT in the 2015–16 financial year. In six of these matters, the application for review was struck out, withdrawn or abandoned. In three of these cases, the original award was set aside and a new award made on review.^[7]

9.10 Practice Direction No 1 of 2017—Response to Applications for Review of Decisions outlines the procedure to be followed by VOCAT upon receipt of a Notice of Review to VCAT.^[8]

9.11 The Practice Direction notes that ‘where a decision of VOCAT is subject to review by VCAT, VOCAT, as primary decision-maker, will actively participate in the VCAT review of its decision’.^[9]

9.12 When a Notice of Review is received, the registrar must record the date that the Notice of Review was received from VCAT on VOCAT’s case management system.

9.13 The registrar also notifies the VOCAT Principal Registrar and provides a copy of the Notice of Review to the VOCAT member who made the decision subject to review (referred to as the ‘primary decision-maker’), together with a request for:^[10]

• written reasons for the decision under review, as required by section 49(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

• a list of documents in VOCAT’s possession that the primary decision-maker considers relevant to the review of the decision (referred to as ‘relevant documents’)

• the identification of any relevant documents containing sensitive material and which may require consideration by a VCAT member prior to being released to any person.

9.14 Different processes apply to the provision of ‘sensitive’ materials to the various parties—VCAT, VOCAT’s legal representative, the applicant or their legal representative and other third parties.^[11]

9.15 During preliminary consultations the Commission was not told of any current issues with respect to the review provisions under the Act.

Refund of VOCAT awards

9.16 The Act also enables VOCAT to require applicants to refund some or all of the financial assistance awarded to them if they later receive damages, compensation, assistance or other payments of any kind for injuries suffered as a result of a violent crime.^[12] Any money not refunded as required may be recovered as a debt due to the state.^[13]

9.17 Limited data is available on how often refunds are required, as VOCAT’s annual report does not state how often refunds are required and whether, in practice, the refund provisions are used, including the enforcement of debts.

9.18 As with the review provisions, the Commission was not informed of any current issues with respect to the review provisions under the Act during preliminary consultations.

Variation of an award

9.19 Under the Act, only the person to whom, or for whose benefit, an award of assistance has been made can apply for a variation of their award.^[14] However, under section 60(1) of the Act, VOCAT has very broad discretion and can vary awards ‘in any manner that the Tribunal thinks fit’.^[15] VOCAT may vary the terms of an award or increase or decrease the amount of an award.^[16]

9.20 In considering an application for variation, VOCAT must have regard to:

• any fresh evidence

• any change of circumstances

• any other payments received by the applicant

• any other relevant factors.^[17]

9.21 VOCAT must not vary an award if the application for variation is made more than six years after the original award, unless the applicant was then under 18 years of age.^[18]

9.22 Although there is broad provision for variation, variations must still be consistent with the Act. For example, an award for ‘other expenses actually and reasonably incurred’ under section 83 must still assist a victim’s recovery from the act of violence.^[19]

9.23 In 2015–16, VOCAT varied 986 awards for expenses already incurred and 588 for expenses not yet incurred.^[20]

9.24 Case law confirms that the variation powers under section 60(1) are wide.^[21] Variations can be made in situations ‘where new evidence is forthcoming that enables an award to be made either where no award was made at all or at a higher rate than could have been made on the material previously available’.^[22]

9.25 The application of the variation provision in section 60(1) can be seen in Davis v Victims of Crime Assistance Tribunal,^[23] where VCAT noted the ‘numerous’ awards of assistance made to the victim by way of variation for counselling, medical costs and education expenses.^[24]

9.26 While the variation provisions under section 60(1) are broad, section 60(2) limits the window in which these variations can occur. This is evident in Bonner v Victims of Crime Assistance Tribunal.^[25]

9.27 In that case, the applicant was awarded compensation in February 2008. In March 2014, the applicant sought to have the award increased to cover dental treatment she claimed was required as a direct result of her injury. VOCAT denied the application under section 60(2) of the Act because the application for variation was made more than six years after the making of the award of assistance. Despite the applicant being only one month beyond the six-year variation window, a strict application of the provision was required due to the lack of discretion in section 60(2).

9.28 On appeal to VCAT, the applicant submitted that VCAT had jurisdiction to extend the six-year variation time limit under the Victorian Civil and Administrative Tribunal Act 1998 (Vic). However, VCAT found it did not have jurisdiction, as well as reaffirming that the Act does not give VOCAT any power to extend the six-year time limit.^[26]

9.29 In the first consultation paper, a case study relating to a victim of family violence demonstrated the way in which the variation process can be used in a positive way to meet the changing needs of a victim.^[27] In the first instance, the victim was awarded 24 sessions of counselling, $1300 in special financial assistance, $5500 for a vehicle to assist with her recovery and $1000 for a computer to assist her in achieving her study goals. Six months later, a variation of the award enabled the victim and her children to go on a family holiday to assist with recovery.^[28]

9.30 The case study illustrates the flexibility of VOCAT in providing additional awards as situations change or new needs emerge. Variation of awards acknowledges that a victim’s journey is not always predictable, and needs may change over time.

9.31 However, the process of applying for a variation is not always smooth. In preliminary consultations the Commission was told that each variation might require the hiring of a solicitor and the collection of reports and evidence from counsellors or psychologists. Many variations relate to additional counselling, where the variation is required for therapeutic purposes rather than for ‘other expenses’ such as holidays or study assistance. These types of issues are not confined to victims of family violence.

9.32 The Commission was told that it would be more useful and beneficial if practitioners could provide more counselling sessions at their discretion, rather than victims having to re-engage lawyers to seek financial assistance to pay for it.

Discussion and options for reform

9.33 This section discusses the operation of the variation provisions in section 60 of the Act. It also sets out options for reform to address concerns that the variation provisions may be adversely affecting victims of crime.

9.34 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on whether the variation provisions should be amended. Possible options for reform and questions are set out below.

9.35 The Commission also seeks views on the current operation of review and refund provisions, although no options are proposed in relation to these matters.

How are the variation provisions affecting victims of crime?

9.36 The main issues with respect to variations are:

• The variation process—most variations require the applicant to file additional paperwork via lawyers and other professionals, increasing delays and limiting flexibility and continuity in provision of services such as counselling.

• The variation window—VOCAT must not vary an award if the application for variation is made more than six years after the original award was made, unless the applicant was then under 18.^[29]

9.37 Research by the Victims Support Agency in 2011 found that some victims considered the process of seeking variation of an award to obtain further counselling frustrating because it involves many visits to lawyers. One victim stated: ‘you want it to be over and that dragged it on substantially longer … which is why I think a lot of people wouldn’t go through with it.’^[30] During preliminary consultations the Commission was informed that the process was overly legalistic and burdensome, that solicitors should not need to be involved and that an administrative process would be simpler.

9.38 In the final report of the Victorian Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, Betrayal of Trust, the limitations of VOCAT to provide ongoing financial support to victims of child sexual abuse was also noted. As outlined above, VOCAT must not vary an award if the application for variation is made more than six years after the original award was made, unless the applicant was then under 18 years of age.^[31]

9.39 The Betrayal of Trust report noted other compensation schemes that, while not designed to cater indefinitely to ongoing costs, cover costs to assist victims to recover from their injury over a longer period of time. One victim stated these schemes provided a more appropriate ‘safety net’ for victims.^[32]

9.40 The strict application of section 60(2) is evident in Bonner v Victims of Crime Assistance Tribunal^[33] where the applicant was only one month beyond the six-year variation window but VOCAT was required to deny her variation application because of the lack of discretion in the Act.

Amending the variation ‘window’

9.41 To address concerns with respect to the variation window, one option is to increase the variation time limit.

9.42 However, there is little precedent for increasing the time frame beyond Victoria’s six years, given the time limits do not extend beyond seven years in other Australian jurisdictions.^[34] The time frames in other jurisdictions vary between three and seven years.^[35]

9.43 Alternatively, the variation time limit could be amended for some types of crime or injury. This could be in recognition of the ongoing needs associated with certain crime types, as outlined in the Betrayal of Trust report in relation to historical child sexual assault.

9.44 A further option is to amend the variation window but only for certain types of assistance, for example, counselling or medical costs associated with an injury. This would meet some longer-term costs, but only related to expenses incurred.

Question

37 Should the six-year time period for variation of an award be extended to account for victims of crime with long-term needs? If yes, how long should the time limit be extended and should this be for specific crimes or specific types of award only?

Reducing the administrative burden and delay in seeking variations

9.45 An option to address concerns about the procedural and administrative burden of the variation process would be to make variations simpler for certain types of assistance, such as counselling or medical expenses incurred.

9.46 The variation process for these types of expenses could better align with an administrative process and have time limits for decision making to enable continuity of service delivery for victims who, for example, are awaiting a decision so that they can continue counselling.

9.47 This could be supported by other possible reform options discussed in Chapter 10, such as implementing an administrative triage or case management function in the VOCAT registry to assess and prioritise VOCAT applications.

9.48 This would probably require additional funding and a specialist coordination team with appropriate expertise in assessing victim needs. An alternative approach might involve co-locating staff from the Victims Assistance Programs (VAPs) as support coordinators within VOCAT. VAP workers would have the expertise to prioritise variation applications which require swift decisions to support victim recovery.

Questions

38 How does the variation process impact on victims of crime?

39 Is there a need to make the variation process more accessible and timely for victims? If so, what changes should be made to the Act and/or VOCAT processes?

How are the review and refund provisions affecting victims of crime?

9.49 In addition to questions relating to variation, the Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on the following questions in relation to review and refund of awards.

Questions

40 In what circumstances are VOCAT awards refunded? Is it appropriate for the Act to require the refund of awards in certain circumstances and if so, in what circumstances?

41 When might victims seek review of a VOCAT award? Are there any barriers to seeking a review of an award? If so, how should these barriers be addressed?

1. Victims of Crime Assistance Act 1996 (Vic) s 59(1).

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2. Ibid s 59(1)(a)–(e).

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3. Ibid s 59(2).

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4. Ibid s 59(1A).

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5. Ibid s 59A(2)

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6. See, for example, Ractliffe v Victims of Crime Assistance Tribunal [2015] VCAT 205 (4 March 2015) relating to a review of VOCAT’s refusal to pay $405 for an occupational therapy assessment.

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7. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 61.

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8. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No 1 of 2017 —Response to Applications for Review of Decisions, 1 May 2017, 1.

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9. Ibid 2.

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10. Ibid 3.

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11. Ibid 4.

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12. Victims of Crime Assistance Act 1996 (Vic) s 62.

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13. Ibid s 62(4).

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14. Ibid s 60(1).

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15. Ibid. However, the Tribunal is still bound by the provisions of the Act relating to the payment of and amounts of assistance: s 60(4).

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16. Ibid s 60(1).

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17. Ibid s 60(3).

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18. Ibid s 60(2).

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19. See, eg, Davis v Victims of Crime Assistance Tribunal [2008] VCAT 2535 (10 December 2008) [24].

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20. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 60.

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21. See, eg, GDE v Victims of Crime Assistance Tribunal [2009] VCAT 914 (27 May 2009).

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22. Ibid [10].

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23. [2008] VCAT 2535 (10 December 2008).

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24. Ibid [16].

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25. [2014] VCAT 1438 (19 November 2014).

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26. Ibid [15].

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27. Victorian Law Reform Commission, Family Violence and the Victims of Crime Assistance Act 1996, Consultation Paper (2017) 129–130 [12.16]–[12.17].

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28. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 18.

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29. Victims of Crime Assistance Act 1996 (Vic) s 60(2).

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30. Victims Support Agency, Department of Justice and Regulation (Vic), Counselling for Victims of Crime (2011) 33.

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31. Victims of Crime Assistance Act 1996 (Vic) s 60(2).

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32. Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013) vol 2, 558.

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33. [2014] VCAT 1438 (19 November 2014).

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34. See, eg, Victims Rights and Support Act 2013 (NSW) s 40(6); Victims of Crime (Financial Assistance) Act 2016 (ACT) s 49 (2); Victims of Crime Assistance Act 2009 (Qld) s 101(3); Victims of Crime Assistance Act 2006 (NT) s 46(1).

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35. See the comparative table of Australian jurisdictions at Appendix B.

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