New Zealand Covid Vaccine NFCS

Introduction

New Zealand had an existing no-fault compensation scheme for vaccines created in April 1974, and which incorporated covid-19 vaccines from 18 February 2021.

This scheme was created under national legislation and has been amended by a number of different Acts since the 1970s.

It is administered by the Accident Compensation Commission (ACC), who are a Crown entity. Crown Entities are part of the state sector in New Zealand and are established under the Crown Entities Act 2004. Crown entities are public sector organisations where the governance of the organisation is split from the management of the organisation.

The funding for ACC is split into five funds, and it comes from a mixture of Levy funding and central Government funding. The fund which pays for vaccine compensation comes from central Government funds.

Vaccines Covered

This NFCS does not specify which vaccines are covered. An injury caused by a vaccine is covered by ACC if it is a ‘treatment injury’ as set out in Section 32 of the Accident Compensation Act 2001. In this context a treatment injury would be a personal injury caused by a vaccination received from a registered health professional which is not a not a necessary part, or ordinary consequence, of the vaccination, taking into account all the circumstances of the treatment, including the person’s underlying health condition at the time of the treatment; and the clinical knowledge at the time of the treatment.

Treatment injury does not include the following kinds of personal injury:

(a) personal injury that is wholly or substantially caused by a person’s underlying health condition:
(b) personal injury that is solely attributable to a resource allocation decision:
(c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.

Treatment injury includes injuries that occur as part of an approved clinical trial. Vaccines approved for emergency use and standard approvals and those used as part of an approved clinical trial would be covered by this NFCS.

Injuries Covered

This NFCS covers both temporary and permanent treatment injuries.

Under this NFCS any injury which qualifies as a ‘treatment injury’ is covered.

Charges for making a claim

There is no upfront charge for making a claim under this scheme. A claim must be lodged by a doctor, who must certify that this is a treatment injury. In New Zealand public healthcare is free or low cost for citizens, residents and individuals who hold a work visa valid for two years or more.

Claimants

Under this scheme the following categories of individuals are permitted to make a claim.

Live vaccine recipient/their authorised representative
Beneficiaries of a vaccine recipient/their authorised representative
The estate/representative of a deceased vaccine recipient

Under this scheme the claimant is allowed to nominate a representative to make their claim. This can be a legal representative, but funding for legal representation is not provided by the scheme.

Under this scheme the claimant is allowed to nominate a legal representative to make their claim. Funding for legal representation is/is not provided by the scheme. there is limited funding available when appealing against an ACC decision, see below.

Losses covered

This scheme pays the following

Live Vaccine Recipient	Dependants of Vaccine Recipient	Estate of a Deceased Vaccine Recipient/ person who has paid for the Deceased's funeral
Both eligible economic and eligible non-economic losses are compensated	Both eligible economic and eligible non-economic losses are compensated	Compensation payments are for general categories and are not broken down into economic and non-economic losses.

The following categories of benefits and reimbursements are available.

Live Vaccine recipient: -

The following payments are potentially available to live vaccine recipients:-

1. Loss of income – the rates of compensation are set in the Accident Compensation Act 2001 and are updated every July taking into account to the Labour Cost Index. As at Feb 2023

This is generally 80% of the pre-vaccination income, subject to caps.
The maximum weekly compensation is $2,163.70
The minimum weekly compensation is $678.40 (80% of the adult minimum wage)

2. Support with returning to work – this is wide ranging this can involve

contributions towards transportation costs,
provision of adapted equipment and technology,
top up income if an individual returns to work on reduced hours

3. Financial support for permanent injuries – A claimant is assessed for the severity of the injury and the level of impairment to determine the level of payment. Payment can be:-

One-off payments
Ongoing payments - these will continue unless a reassessment indicates the level of impairment is below

Deceased Vaccine recipient:-

Three forms of payment are potentially available to the partner, child or dependant of a deceased vaccine recipient.

1. Payments for loss of income – This will be up to 80% of the deceased’s earnings. This payment will be divided between partner, children and other dependants. Payment will be paid for the following lengths of time

Partner – payments will be made either for 5 years or until the youngest child in the partner’s care turns 18.
Children – payments will stop at the end of the year the child turns 18 or if they are in full-time study then payments will cease when they complete their studies or turn 21.
Other dependants – payments will be made until the dependant earns more than the minimum wage for full time work.

2. Payments to help with childcare – These are weekly payments.

The value of this payment varies according to how many children under 14 there are
Payments are made for five years or until the child reaches the age of 14.
There is provision for payments to continue for longer for disabled children.

3. A one-off survivor’s grant – This is a lump sum payment. If the child or dependant is under 16, this money will go to their parent or caregiver. These amounts may change depending on the date of death, payments currently consists of:-

$7,531.49 to the spouse or partner
$3,765.76 to each child under 18 or other dependants.

Partner, Children and Other Dependants are defined as follows:-

Partner – The deceased’s husband or wife; or someone they were living with in the nature of marriage. A partner may still get support if they were living apart because of work, health or imprisonment.

Children – The deceased’s natural or adopted children, born up to a year after they’ve died. Any children the deceased lived with and cared for. Eg a child from a previous relationship or a foster child.
Other dependants – A disabled person who received financial support from the deceased.

Estate of a deceased vaccine recipient/person who has paid for the funeral of the deceased

1. Funeral Grants – If a vaccine recipient has died ACC will make a funeral grant payment towards the funeral/memorial costs. Funeral Grants amounts are updated annually, in February 2023 they are up to $7,024.80. This can be paid:-

to the deceased’s estate,
directly to the funeral director, or
to an individual who has already paid the funeral/memorial costs.

Payments consist of a mixture of periodic payments and a lump sum payment.

Funeral expenses are available under this NFCS.

Compensation under this scheme calculated on an individual basis using statutory guidelines to assist with quantification.

Loss of earnings are paid under this scheme. They are individualised at 80% of the pre-injury earnings but with a top cap of $2,163.70 per week and a minimum weekly compensation is $678.40 (80% of the adult minimum wage). These figures are index linked and updated each July.

There is no minimum claim value under this NFCS.

Time limits for claims

For live vaccine recipients a claim under the scheme must be brought within 12months of the point of injury. For claims involving a death there is no time limit.

Evaluating claims – standard of proof required

If the vaccine recipient is alive then they go to a healthcare practitioner who will submit a claim to ACC on their behalf certifying that it is a treatment injury.

If a claim is made following the death of a vaccinated individual the application form must be signed by:-

Spouse or partner
Next of kin
Executor of the will.

The applicant can choose to nominate someone else to deal with the claim on their behalf.

ACC will then examine the claim to see if it meets the definition of a treatment injury set out in Section 32 of the ACA 2001. This is judged on the balance of probabilities.

Appeals and the right to litigate

This scheme is a removes the right to litigate.

ACC have an internal review process where they encourage dissatisfied claimants to contact them to try to resolve the issues.

There is an external review process. A claimant who is unhappy with the decision ACC made regarding their claim can ask to have it reviewed by an independent reviewer. The request for a review must be made within three months of the decision date. ACC can pay some of the costs associated with a review, including paying someone to represent the claimant, but these costs are capped as per Section 148 of the ACA 2001.

If a claimant feels they have been dealt with unfairly they can also apply to the Office of the Ombudsman.