Bristow v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON (2015] NZACC 138 ACR 69/13 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF GEORGE BRISTOW Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 27 March 2015 Appearances: C L Hollingsworth for the appellant P A McBride for the respondent Judgment: 9 June 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN Background [1] This is an appeal arising out of a review decision of 28 January 2013 upholding a decision of the respondent dated 18 June 2012 about the extent to which a backdated payment for historic attendant care needs could be made [2] The whole exercise has a degree of artificiality as the contested Review decision was made after the death of Mr Bristow on 19 October 2011. [3] There is in the written submissions of the appellant a degree of inadvertent confusion prompted I think by the fact that Mr Bristow was involved in two serious motorcycle incidents. The first was on 4 July 1991 resulting in very severe injuries and prompting full scale cover of a rehabilitative and attendant care nature from that time onwards with a particular focus on the first year after the accident. Then there was another motorcycle accident when he had an epileptic fit while riding his motorcycle and died on 19 October 2011. [4] Without going into unnecessary detail because it is not relevant for the purposes of the appeal the exercise under scrutiny now is not the only backdated adjustment that has been made in this case but the reality is that any adjustment resulting from the review under scrutiny and this appeal of necessity can only be a cash settlement for Mr Bristow's estate and not for the direct benefit of Mr Bristow. Summary of the Relevant Interventions and Overall Factual Background [5] The facts are not in dispute and are correctly set out in the reviewer's decision namely: Serious head injury 4 July 1991. Discharge from hospital 15 July 1991 and return to Mr Bristow's parents' farm to live. Whilst the physical injuries largely resolved there were serious ongoing neurological problems and a resultant 25 percent permanent disability assessment. A work trial was carried out in April 1992 working in a garage and later on the family farm under his father's supervision. By August 1995 seizures resulting from the head injury had ceased and there appeared to be some signs of an improvement in cognitive impairment. Around January 1998 Mr Bristow left the farm, went to relatives, and undertook a heavy trade course and driving assessment which showed the physical capabilities were satisfactory but still with cognitive ability concerns. 1 March 1999 a neuropsychologist Dr Fernando confirmed significant cognitive deficits and an inability to live independently. On 17 May 1999 Mr Bristow's mother requested backdated extended care payments which was investigated by the respondent and a substantial lump sum payment made covering the period from discharge from hospital in July 1991 down to August 1992 by which time the level of need had fallen. In October 2010 further attendant care payments were sought and a Support Needs Assessment (SNA) was carried out under the present Act with an assessment of 5.75 hours of attendant care and 1 hour per week of home help. In June 201 1Mrs Bristow requested payment backdated to 2002 when Mr Bristow had returned home to live and the respondent issued the decision under scrutiny in this appeal on 18 June 2012 approving 5.75 hours of attendant care plus 1 hour of home help per week backdated to 2002. In the meantime Mr Bristow had died on 19 October 201 1. A further request was made for backdated payments from 5 August 1992 to 2 March 1999 which was declined and that was upheld on review and not appealed. [6] Turning to the other relevant events: On 18 April 2002 Mr Bristow moved back to his parents' farm. An SNA was carried out on 27 September 2001 by Kate Meads an occupational therapist who had assessed Mr Bristow's then weekly needs as 6 hours per week and likely to be stable on an ongoing basis. Also there was funding for training for independence of 4 hours per week approved. In November 2002 Mr Bristow had advised the respondent that he no longer needed its assistance so that the rehabilitation assistance was ceased. Later as a result of a request by Mr Bristow's mother a further SNA was undertaken by Kevin Brown, an occupational therapist which was completed on 8 November 2010 concluding a need of 1 hour of home help plus 5.66 hours (total 5 hours 40 minutes) of attendant care per week. This was peer reviewed and endorsed by another Occupational therapist. The respondent then exercised its discretion under s 84 in conjunction with the attendant care provisions in Schedule 1 and decided on 1 1 January 2011 to entirely fund the assessed level of need. At the time that was accepted and Mrs Bristow indicated that she was generally happy with the assessment albeit it was noted training for independence would start once a home had been found. It also noted the possibility as always in this type of situation that if the situation changed then the matter could be further reviewed. That level of support was continued through to 4 December 2011 and a further decision approved 8 hours per week for an external provider to work with Mr Bristow on identified supported living goals. On or about 26 March 2012 Mrs Bristow asked for payment for "the home help provided by myself and the attendant care". It should be noted this was after her son's death. On 18 June 2012 the respondent issued the decision the subject of this Appeal [7] The respondent decided that there was little point in trying to create a further SNA when there was both a prior SNA of Kate Mead's and a subsequent SNA of Mr Brown's which basically covered both ends of the time spectrum under examination. It was obviously impossible to get any further direct input from Mr Bristow but on the basis that the objective needs had essentially remained unchanged over that period it considered the appropriate thing to do was to fully fund the assessed need on the basis that that was the best information available. The Appellant's Position [8] The appellant challenges the correctness of that approach. It accepts that the relevant provisions of the Act are s 79 to 84 and clauses 14 and 17 of Schedule 1 of the Act and that the appropriate approach because this involves a discretionary decision is that spelt out in May v May [1982] INZFLR 165 as endorsed by Clifford J in Wildbore v ACC 22/11/07 High Court, Wellington CIV 2007-485-496 namely the appellant must show: Error of law or principle. Taking account of irrelevant considerations. Failing to take account of relevant consideration or The decision is plainly wrong. [9] The appellant's position is that the SNA is flawed and that to extrapolate forward from Kate Meads' SNA with its predicted onward stable needs and backwards from Mr Brown's SNA was the wrong approach and that there should have been a further backdated needs assessment done by an occupational therapist as to what Mr Bristow's actual injury related needs would have been for the period 2002 to 2011. It submits this is an error of law namely a failure to take into account relevant considerations namely what Mr Bristow's actual conditions and needs were over the relevant period. [10] By way of contrast the appellant proffers a separate SNA carried out by occupational therapist Fran Smith dated 6 December 2012 carried out at the request of Mrs Bristow. [11] Fran Smith noted in her report the following information gleaned from Mrs Bristow: Mina considers that she and her family had been able to support, monitor and coach George since his return home in 2001 - but that this was a role over and above that of mother (brother, uncle etc) she reports (unprompted) that George required assistance with medication, laundry, domestic activities of daily living, personal hygiene (on occasion) decisionmaking when things were out of routine, finance and decisions about safety (driving, outings etc) going to the shops. She reports that generally he was not left alone for any period of time. She considers that he was always in a coaching teaching role, with lots of repetition, providing assistance with memory and problemsolving and guiding him through any of his less acceptable behaviours. [12] Fran Smith concluded that the provision of 5 hours 40 minutes of level 1 attendant care per week did not reflect the care actually provided by the family over the period 2002-2011 as described in the various reports available in 2001 or alluded to in 201 1. [13] Specifically she concluded that attendant care personal needs were 29 hours per week less 8 hours if a supported living programme was in operation: For all other supervision hours at least 13 hours per day where the family provides supervision or monitoring. Daily home help of 2 hours and 10 minutes to recognise "the input required to assist George with managing his contributions to the household as a homemaker". The Respondent's Response [14] The respondent takes issue with the approach of Ms Smith pointing out that the information is sourced through Mrs Bristow and not as in the case of the two other SNAs based on direct information from Mr Bristow himself. That the assessment process by a trained assessor is of objective needs "in his or her ordinary environment" as per clause 12 of Schedule 1. That following that objective assessment then the respondent exercises a discretion including the need to take into account "the alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way ". [15] It further points out that it is only at this discretionary secondary stage that the interests or needs of parties other than the injured person are properly taken into consideration and that there is a flaw in Ms Smith's reasoning in that she has brought those factors into what should be an objective needs assessment of the injured person. [16] The respondent further argues that bearing in mind, as the appellant acknowledges, the need to establish administrative law unreasonableness or wrongfulness as opposed to a different subjective view, the views of a parent or family are largely irrelevant and that just because a person receives a particular level of care that is not proof of the objective need for the same. This is relevant in the context of the interested party being supported and living with family so that actual provision provided there has been acknowledgement of the factors in clause 14 Schedule 1 are relevant. [17] In that context the respondent argues that by August 1992 the situation had reduced in terms of objective need apart from ongoing rehabilitation assistance and there was clearly no need for the same level of personal attention in the intervening 10 years and that Mr Bristow himself had clarified that that was the case. [18] The respondent further submits that the opinion of Ms Smith itself is misdirected and flawed and does not properly reflect the facts,and that there was sufficient assessment information of a before and after nature allowing the respondent to make a reasonable decision. Analysis and Discussion [19] I agree with the proposition that by 2002 Mr Bristow's clinical and other circumstances were largely stable as were his needs. [20] I also agree that for the purposes of its exercise the respondent had an assessment close to the start of the relevant period and that the Kate Mead's assessment properly considered the position with a focus at that stage on training for independent living in circumstances where Mr Bristow was being supported to live independently from his family whilst flatting with his brother. Also that using Mr Brown's SNA together with that of Kate Mead, was a pragmatic.cost efficient and fair way of resolving the matter. I also agree that Ms Smith has misdirected herself by focusing not on the objective level of care required but over relied on the views of the family and what they said was actually provided by the family over the relevant period. (21] It is also pertinent to note that it was Mr Bristow who ended the supported living input and there is good reason to conclude that a relatively consistent level of need over the period from the time Mr Bristow returned home until death existed. Indeed it is arguable that the decision as to the objective level of need after return home was a reasonably generous approach when the respondent exercised its discretion to pay the full amount of the SNA assessed recommendation. [22] Accordingly the appeal is dismissed. Judge A N MacLean