Complaints and disputes
The Retirement Villages Act requires each retirement village to have a means of dealing with complaints. The Act is designed to encourage resolution of complaints at an early stage.
The Act and the Retirement Villages (Disputes Panel) Regulations 2006 set out a detailed procedure for formally resolving disputes if a complaint is not resolved by taking a dispute to a disputes panel. Operators can also take disputes about residents.
The complaints and disputes provisions in the Act may be used not only by residents but also by:
- a former resident, if he or she was a resident of the village on or after 1 February 2004, and
- the "personal representative" of a resident - this could be a family member, a friend or a lawyer.
A resident may also have a support person through the complaints and disputes processes.
How do residents complain?
Residents have the right to complain to the operator of their village and to receive a response within a reasonable time.
The village must have a procedure for complaints by residents, whether against the operator or other residents, and the operator must make this procedure known to residents. Details of the operator's contact person will be in the Code of Residents' Rights. Residents can contact this person for more information about their rights or to make a complaint.
The Code of Practice came into force on 25 September 2007, however was declared invalid in the High Court on 19 December 2007. We are now consulting on the Retirement Villages Code of Practice 2008. Submissions are due by 15 August 2008. It sets out requirements for making, acknowledging, resolving and deciding complaints. In the meantime it's up to each operator to decide how to run their complaints process.
Residents can also complain to the village statutory supervisor (if there is one) or to the Registrar of Retirement Villages about breaches of the Code of Residents' Rights.
What if the complaint doesn't get resolved?
If the complaint doesn't get resolved, the resident may have the issue dealt with by a disputes panel. This right is reinforced by the Code of Residents' Rights, which says that the resident has the right to a speedy and efficient process for resolving disputes between the resident and the operator, or between the resident and other residents.
A resident starts the disputes process by giving a dispute notice to the other party, whether this is the operator or another resident. An operator may also give a dispute notice to a resident. There are no application fees for giving a dispute notice.
If the dispute is between residents and doesn't involve the operator, the person giving the dispute notice must also give a copy to the operator.
The person who takes the dispute is called "the applicant". The person who the dispute is taken against is called the "respondent". They are called "parties".
A resident who is involved in a dispute can also tell the statutory supervisor about the dispute or otherwise involve them in it.
At what stage can a dispute notice be given?
Usually residents must wait 20 working days after making a complaint before giving a dispute notice. They cannot give the notice more than six months after they first made the complaint (unless both sides agree to a longer time).
If the dispute involves the sale or other disposal of their unit, the former resident (or their estate) must wait nine months after the unit has become available to the operator to be disposed of before they can give a dispute notice. They do not, however, have to make a complaint first.
An operator can give a dispute notice 20 working days after notifying a resident of a dispute and making reasonable attempts to resolve it.
What information must the dispute notice include?
The dispute notice must be in writing, and must:
- identify the particular decision or action the applicant is concerned with
- identify the person or people the dispute is with
- state the grounds on which the applicant is disputing the particular decision or action
- state what has been done so far to try to resolve the dispute.
It doesn't matter if this notice fails in some trivial or technical way to meet these requirements - if it substantially meets them, the notice is valid.
Who else gets a copy of the dispute notice?
The operator must provide a copy of the dispute notice to the village's statutory supervisor (when there is one) if the operator thinks the outcome may affect:
- a significant number of the village's residents, or
- the general operation of the village, or
- the operator's rights and obligations under the deed of supervision.
The operator must also give a copy of the notice to the supervisor if a former resident has alleged that the operator has breached the occupation right agreement or the Code of Practice in disposing of the former resident's unit (called a "disposal dispute").
The operator must also give a copy of the dispute notice to the disputes panel and to the Retirement Commissioner.
The disputes panel
Usually within 20 working days of receiving or giving the dispute notice, the operator must appoint one or more independent people to sit on the panel. They are appointed from a list approved by the Retirement Commissioner. The operator must consult with the other parties about who to choose before appointing the panel.
If it is a "disposal dispute" (see above), the operator must appoint at least three members to the disputes panel, one of whom chairs the panel. Once appointed, the disputes panel conducts the whole dispute resolution process. The panel is responsible for:
- deciding what information they need
- holding the pre-hearing consultation with the parties
- making the arrangements for the hearing, including giving the notice of hearing to the parties
- conducting the hearing
- making and notifying the decision in writing, with findings of fact and reasons
- providing all the relevant papers, documents and other material to the Retirement Commissioner.
Before the hearing
The disputes panel can require the applicant to provide more information, in writing, about the dispute and can require the respondent to reply to the dispute notice.
The disputes panel must also consult the parties before the hearing. This may be by way of a pre-hearing meeting or any other method that allows everybody to communicate with each other (such as a teleconference call). The panel must consult the parties about:
- whether to hold a hearing
- where and when to hold the hearing (it's usually expected to be at the retirement village)
- how long the hearing is likely to take
- whether any part of the hearing should be held in private or not be published (hearings are otherwise in public)
- identifying the issues in dispute
- the evidence to be presented and how it is to be given
- arranging for the parties to exchange evidence
- allowing any party to be represented, including by a lawyer.
Any party may also ask witnesses to give evidence at the hearing (such as a statutory supervisor, lawyer, family member or other resident). Unless the disputes panel decides otherwise, the person calling the witness must pay them fees, allowances and travel expenses in accordance with the scale set out in the Schedule of the Witnesses and Interpreters Fees Regulations 1974 (see www.legislation.govt.nz - click 'Statutory Regulations').
The disputes panel will then give a notice of hearing to each party at least a week beforehand. This includes:
- information about the issues to be addressed
- reference to relevant provisions of the Retirement Villages Act or the regulations
- the procedure to be followed
- a warning about what could happen if a party doesn�t attend the hearing.
Will there be a hearing?
Yes, unless the parties agree not to have a hearing or the disputes panel decides not to hear the dispute after consulting the parties. The panel can refuse to hear the dispute if it believes that:
- the dispute is vexatious, frivolous or an abuse of process (in which case the dispute resolution process ends at that point), or
- the dispute should be heard in a court (in which case the disputes panel must refer it to the nearest District Court), or
- the panel should not hear the dispute for any other reason (in which case the operator must appoint another disputes panel to hear the dispute).
What happens at the hearing?
The panel must conduct the hearing in a way that is most likely to resolve the dispute fairly and speedily.
All parties are entitled to be at the hearing and to speak.
First the person who gave the dispute notice (the applicant) states their case and brings forward evidence to support it. Next the person receiving the dispute notice (the respondent) states their case and brings forward their evidence. The respondent may then address the disputes panel generally on the case and the applicant may reply to this.
The parties can agree, or the disputes panel can decide, to change this procedure.
What can the disputes panel decide?
The disputes panel must decide the dispute according to "the general principles of the law" relating to the matter and "the substantial merits and justice" of the case.
The panel can:
- amend the occupation right agreement
- order either side to comply with their obligations under the agreement and the Code of Residents' Rights (and under the Code of Practice when it comes into effect)
- if the dispute is with the operator and is about money, order the resident or the operator to pay or refund the other an amount of money
- if the dispute is with another resident, order either side to return property valued up to $1,000 or pay up to $1,000 in compensation to the other
- order either side to pay costs to the other.
For disputes involving the disposal of a unit the panel has other powers, such as ordering an operator to pay compensation, to market the unit in a particular way, or even to buy the unit.
The disputes panel will give a written decision that sets out its findings on the facts and the reasons for its decision.
The panel's decisions are enforceable in the courts. A decision can also be appealed to the courts; this is done through a rehearing.
Awarding costs
The disputes panel may award costs and expenses to the side that won or to the applicant if it was reasonable to bring the dispute before a panel. If the dispute is between residents, the disputes panel can award costs to the operator.
In deciding on costs, the disputes panel takes into account how reasonable it is to award these costs, the amount or value of the matters in dispute, the importance of the dispute to the parties, and the conduct of the parties.
Is there a monetary limit on disputes that can be taken to a disputes panel?
No, there are no monetary limits.
What kinds of disputes can be taken to a disputes panel?
Disputes taken by residents
Residents can give a dispute notice to an operator about a decision the operator has made relating to:
- the resident's right to live in their unit or to use services or facilities
- changes to the charges for outgoings or for services or facilities
- charges or deductions imposed on the resident because their right to live in the unit has ended.
They can also give a dispute notice to another resident about a dispute affecting their occupation right (including about someone in the other resident's unit with the other resident's permission).
Residents can also give a dispute notice about:
- any decision the operator has made relating to money owed to the resident when they avoided (cancelled) the occupation right agreement for a breach by the operator
- a breach of the Code of Residents' Rights.
When it comes into effect, a resident can give a dispute notice about a breach of the Code of Practice.
A resident cannot give a dispute notice about health or disability services. If a resident thinks a health or disability service provider has not complied with their rights under the Code of Health and Disability Services Consumers' Rights, the resident should first raise their concerns with the relevant provider. A health and disability consumer advocate can help resolve complaints. An advocate may report an unresolved complaint to the Health and Disability Commissioner or a resident can take their complaint directly to the Health and Disability Commissioner's Office.
Dispute taken by operators
Operators can take a dispute on any decision relating to:
- residents' rights to live in their unit or to use services or facilities
- changes to the charges for outgoings or for services or facilities
- charges or deductions imposed on residents because their right to live in the unit has ended.
Operators can also take a dispute about a resident ending their agreement and seeking a refund.
Dispute taken by former residents
Former residents who were residents in the village as at 1 February 2004 can give a dispute notice if the operator has breached their occupation right agreement (or the Code of Practice when it is in force) in selling or otherwise disposing of a unit they used to occupy. There are special rules in these cases: see the section leaving a retirement village. They do not need to have made a complaint.
How much does it cost to take a dispute to a disputes panel?
There are no application fees for giving a dispute notice. The operator is responsible for paying all the costs incurred by the disputes panel, including their fees and expenses such as travel costs.
Each party is responsible for paying the costs and expenses of any witnesses they call to give evidence, and also for any support person or representative they engage, such as a lawyer or advocate.
However, the disputes panel may award some or all costs and expenses incurred to any party or to the operator where there is a dispute between residents.
Where can I get more information?
More information about complaints and disputes processes can be found on our complaints and disputes pages, including flowcharts, forms and a list of the approved adjudicators.
Further details about the hearing process are in the Retirement Villages (Disputes Panel) Regulations 2006.
Page last updated: July 2008