Madsen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 130 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DORETTE DAPHNE MADSEN of Masterton Appellant (Appeal No. DCA 34/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at WELLINGTON on the 19th day of February 1998 APPEARANCES Appellant in person MS F M Patterson for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant was overpaid for home help and whether a debt has been raised which the respondent is entitled to recover. The background to the appeal is that the appellant injured her spine when she fell down stairs on 30 August 1993. In January 1994, the appellant approved a grant of home help to a maximum of $120 per week. The appellant submitted a receipt for home help paid to "L S Williams" for 24 hours for the fortnight ending 12 April 1994 for which $240 had been paid. Thereafter the appellant supplied regular similar 2 receipts which identified that "L S Williams" had provided 12 hours of home help per week. In November 1994 the appellant's entitlement to home help was reassessed at the increased rate of $140 per week. In the letter notifying the increase the appellant was requested to supply details of the home help on the claim forms provided to the appellant. In particular the respondent requested to know the home helper's telephone number. From November 1994 the appellant continued to supply receipts signed by "L S Williams" for 12 hours home help per week for which she was paid $140 but in no case was the helper's home telephone number supplied. On 3 April 1996 the respondent addressed a letter to "Ms Lani Williams, RD 7 Feilding", that being an address supplied by the appellant. The letter was returned by New Zealand Post as it had no record of Ms Lani Williams at that address. In May 1996 the appellant arranged for an investigator to conduct a surveillance of the appellant's home. In a report dated 27 June 1996 the investigator stated that he had seen no sign of the appellant or the home helper at the house. In July 1997 the appellant then moved from Feilding to Masterton where she now lives. In July 1996 the respondent submitted a form of statutory declaration to the appellant requesting details to enable it to contact the home helper but the appellant failed to return the completed declaration. A further report from the investigator in August 1996 detailed an interview between the investigator and the appellant. The report noted that the appellant was unable to give details as to how the home helper could be contacted and could provide no explanation as to why the investigator had not seen anyone at her home. The appellant in August 1996 by letter advised that a reason for the failure to see someone at her home may have been an occasion when she had been with her mother in Palmerston North. She explained that on those occasions she received home help assistance at her mother's address. In a further letter of 15 August 1996 the respondent again requested contact details for the home helper and indicated that in their absence it would consider the question of whether an overpayment had been made. In September 1996 the investigator notified the respondent that he had been unable to locate the home helper on the information provided by the appellant. On 26 September 1996 the respondent advised the appellant that she had been overpaid for home help from 15 April 1994 to 3 July 1996 and that it required repayment of the sum of $17,250. The appellant applied for a review of that decision. The review officer made a decision on the papers as the appellant did not appear at the review hearing. The review officer considered that the appellant's explanations were not credible and upheld the respondent's primary decision. It is against that decision which the appellant now appeals. The appellant gave evidence at the review hearing in which she stated that she had engaged "Lani Williams" as her home helper on the advice of her then Case Manager, Rochelle Naran. She said that she had an arrangement whereby the home help was provided on two days per week and normally on the same two days each week. However, she said that after the breakup of her marriage in March 1996 the arrangement that Lani Williams would give home help on each Monday and 3 Tuesday was changed and she came on days suitable to the appellant. The appellant said that this matter was discussed with Ms Naran and on some weeks when care was not needed Ms Williams might come for extra days on other weeks. The arrangement was a loose one, but one which she understood was approved by her Case Manager. The appellant said that Ms Williams had never provided an address or a phone number but had programmed the appellant's telephone with a number at which the appellant could reach Ms Williams by simply pressing one number on the phone. She said that she only needed this on odd occasions because usually Ms Williams contacted her. She said that she had not completed the declaration sent to her nor had she insisted to Ms Williams that she add her phone number on the receipts for payment as she had not really given thought to these matters, although she acknowledged having received the documentation from the respondent The appellant confirmed again the statements which she had made to the investigator that the investigation took place after the breakup of her marriage when at times she went to her mother's home in Palmerston North and it may be that on those occasions the investigator had come to the house. However, she stated that on the occasions that she went to her mother's house Ms Williams provided her with home help there. When the hearing was completed I issued a memorandum requesting the respondent to ascertain from Telecom New Zealand whether it was able to ascertain from its records the number which Ms Williams had apparently included in the appellant's telephone to enable her to reach Ms Williams, but apparently it was not possible to obtain this information. In addition, Ms Patterson submitted a letter from the respondent's Branch Manager at Palmerston North stating that it was not policy for the branch to recommend home help providers to persons such as the appellant. The letter noted that a person such as the appellant would have been referred by the Case Manager to MidCentral Health which holds a list of agencies available to supply home help. Ms Patterson submitted that the appellant was not entitled to home help on the grounds that pursuant to Regulation 6 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992 she had failed to comply with the requirements to provide accurate times and dates of the receipt of home help. She submitted further that there was a breach of the regulations in that home help was sometimes provided in a home other than the appellant's normal residence and that she failed to provide information requested by the respondent under s.64 of the Act. Ms Patterson submitted that it was proper for the respondent to require details of the person to whom payments were made so that it could confirm that home help was being given properly in accordance with the regulations. The appellant has given evidence on oath that "Lani Williams", the person who signed numerous receipts for home help between April 1994 and July 1996, in fact provided her with home help in her own home except for odd occasions when she 4 was at her mother's home in Palmerston North. She submitted that her Case Manager was aware of this arrangement and had not expressed doubts about it. I have studied the receipts for home help and in each case the signature of 'L S Williams" certainly appears to have been signed by the same person and in each case the appellant has signed the form as the claimant. On some of the forms Ms Williams has noted her address as 7 RD Feilding and has simply put a dash in the space provided for the telephone number. While the circumstances surrounding the investigation seem strange, in that neither the appellant nor Ms Williams was at the house when the investigator called, and nor did the appellant answer the phone on occasions when the investigator rang, the appellant has offered some explanation for that. However, it does appear that on some occasions her car was at the house when the investigator called. The appellant appears to have had a happy relationship with her Case Manager, Ms Naran, and has stated that the arrangement she had with Ms Williams was approved by Ms Naran. There is no evidence from Ms Naran regarding this issue. While the review officer was in the position that he had to make a decision without the benefit of hearing from the appellant I have had the opportunity to see and hear her. It appears that she has a chronic back problem for which she requires home help. In spite of this claim for an overpayment the appellant continues to receive home help assistance at her new home and has continued to receive it since she moved there. The review officer felt obliged to doubt the appellant's credibility because the story she told in her correspondence appeared to be unsatisfactory. It certainly appears that by the way Ms Williams completed the receipt forms that she was not going to disclose her telephone number and provided only the address of 7 RD Feilding. Certainly the New Zealand Post had no record of her at that address, but that should not be held against the appellant. She had no reason to need to contact the appellant other than by pressing the particular number on her telephone. Having seen and heard the appellant I had no reason to doubt her veracity. She was certainly careless in the manner in which she treated the correspondence from the respondent but for a period of over two years her regular written requests for reimbursement were answered by payment from the respondent without query. Further, I consider that by reference to the regularity with which the receipts were signed by someone known as "L S Williams", and the appellant's evidence on oath, the work was done. There is the additional factor that from April 1994 the appellant required and still requires the same type of home help which is now provided by another provider. I do not consider that the appellant should now be penalised for what occurred in the period in question. The problems appear to have arisen when she was particularly upset by the breakup of her marriage and although she continued to supply the receipts signed by Ms Williams her failure to provide a 5 telephone number was something which she did not take as seriously as she should. However, in the interest of justice I consider the appeal should be allowed. The decision of the review officer is revoked and the calculated overpayment is cancelled. DATED at WELLINGTON this | 7 day of June 1998 beenadubon A W Middleton District Court Judge de34-97.doc(rd)