Ngatai v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 333 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN GAIL NGATAI DCA 14/99 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD on the 3to day of November 1999 APPEARANCES: Mr D Heperi counsel for appellant Mr M H L Morrison counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE Two issues require determination in this appeal. Firstly, whether the Court has jurisdiction to hear an appeal brought by this appellant from a decision of the respondent or, more particularly has this appellant got the status of an appellant under the Act. 2 Secondly, if the Court determines the first issue in the appellant's favour, whether the respondent's decision to decline to provide a washing machine to the appellant under the Complex Personal Injury Regulations was correct. The facts which are relevant to determination of these two issues are as follows: The appellant is the aunt of Kali King, she being the sister of Kali's mother. In August 1986 when Kali King was 16 years of age, she was seriously injured in a motor accident. She was in intensive care for 7 months and there was a further period of hospitalisation after discharge from intensive care. She suffered brain damage in the accident and there are ongoing emotional and mental consequences which have prevented her from functioning independently in the community. She spent a period of 5 years in Tokanui Hospital from 1990. In 1995 she returned to live with her mother and her new partner but it seems that her mother could not cope with the demands and requirements that Kali's condition dictated and she was thereupon placed in sheltered accommodation with supervision under the umbrella of an organisation known as the Manaaki Trust. Kali lived in that situation until September 1997 when it was arranged that she go and live with her aunty, Gail Ngatai, the appellant in these proceedings. The appellant lived with her husband and other family members in a home in Taumarunui. Kali suffers from a whole range of physical and mental problems and one of the unfortunate consequences of her injury has resulted in her inability to remain continent for both urine and faeces, both day and night. It is that aspect of her condition which is relevant for the substantive issue in this appeal, but it is by no means the only difficulty that a caregiver is faced with when looking after Kali. The respondent commissioned a report from Jenny Oxley, Occupational Therapist, for the purposes of assessing Kali's needs for home modifications, equipment and vehicle. In her report of 14 November 1997 Ms Oxley stated inter alia: 3 'Kali is generally unaware of when her bladder and bowel have moved and will not go to the toilet or change her clothing of her own volition. Frequent washing is needed, and in most cases the mess is considerable and necessitates changing of clothes, and in the mornings changing of bed linen and blankets (usually five nights out of seven). At the time of assessment Kali had been provided with incontinence pads, however they were not making a significant reduction in the amount of personal washing and washing of bedding. Consideration was given to the use of a bedside commode, and continued use of the washing facilities in the main home, however due to the combined intellectual impairment and incontinence problems, this is unsatisfactory on a long term basis. . . . Gail is requesting that a heavy duty washing machine and drier be purchased. The existing washing machine is a standard F & P automatic machine. Gail washes about two to three loads a day. In winter and times of inclement weather it is difficult to get bedding dry. As with the vehicle it is anticipated that the use of appropriate incontinence pads and bed protection will significantly reduce the amount of clothes and bedding that is needed to be washed. A 'Kylie' sheet is recommended as essential to prevent the mattress from being soiled and to keep excessive moisture away from Kali's body. As no laundromat is available in Taumaranui and if no improvement in Kali's 'dryness' is noted, then purchase of a washing machine and drier would be desirable." Following on from that report a further report was prepared by Maureen Kennedy, a nurse who was in charge of Kali's supervision, and she observed that the arrangements for her incontinence were working, by the use of naps etc. and that it was nurse Kennedy's opinion that if things went as they appeared to be heavy duty washing facilities would not be necessary. The next event to occur was for Kali to be assessed under the Complex Personal Injury Regulations 1994 for what is called a Comprehensive Needs Assessment as is provided for under those regulations. That assessment was carried out by Gillian Hoggin in January 1998. The appellant was fully involved in that assessment and whilst it is noted that the appellant was concerned at the amount of washing which was necessary to maintain adequate hygiene and that the appellant was requesting assistance by provision of a heavy duty washing machine and dryer, the advice to Ms Hoggin was that at the present time washing was at a minimum and that there was no need for heavy duty washing facilities. The assessment stated that if no improvement in Kali's dryness is noted then purchase of a washing machine and dryer would be desirable. As is required under those Complex Personal Injury Regulations a statement of goals is prepared and this was signed by the appellant in her capacity as claimant's representative. That statement of goals did not make any provision for a heavy duty washing machine. In accordance with that statement of goals the case manager for Kali issued a decision to the appellant, but addressed to the appellant and Kali, advising of the respondent's decisions in relation to the various matters which the assessment and statement of goals had identified. In that decision there is stated as follows: "Entertainment Centre and Washing Machine and Dryer These items are required for use in all homes and there is a family responsibility to provide them, therefore the purchase of the entertainment centre for Kali and the washing machine and dryer has been declined." The letter went on to give advice of a right of review if the person was not satisfied with that decision. On 18 June 1998 the appellant lodged an application for review of that decision, seeking the following: i) Reassessment of attendant care and supervisor requirements ii) Contribution towards running costs of washing machine ifi) Review costs. Prior to the appellant lodging that application for review Kali's situation changed and she was withdrawn from the appellant's care by her mother at the end of April 1998 and it was Kali's mother's advice to her case manager that she would not allow Kali to return to live with her sister at anytime. Despite that change in the state of affairs the review hearing proceeded. In fact, because of a lack of time, the Review Officer heard the appellant on the questions of attendant care and costs and elected to deal with the issue which is the subject of this appeal on the papers. Separate decisions were delivered for each matter, the Review Officer having the benefit of written submissions from Mr Heperi for the purposes of the decision on the question of the washing machine. In his submissions Mr Heperi advised that the washing machine had broken down under the excessive use and it was his plea that the appellant be provided with the means to purchase another washing machine or alternatively be given a contribution to its cost in recognition of the additional wear and tear that had occurred to her existing machine. In her decision the Review Officer looked solely at the substantive issue and simply noted that a favourable decision would indicate that the appellant would be issued with a new washing machine when Kali was no longer in her care, the washing machine no longer being used for Kali's needs, and in those circumstances she could not consider its replacement. She noted that if there had been a need for a washing machine, it would have belonged to Kali and would therefore accompany her to her present place of residence. Accordingly the review was unsuccessful. It is that decision which the appellant now appeals to this Court. 6 Essentially Mr Heperi reaffirmed the submissions that had been made to the Review Officer and he submitted that there was a discretion under the Complex Personal Injury Regulations and that, in any event, the appellant was the caregiver at the time when the need first arose. Mr Morrison, counsel for the respondent, submitted that the appellant was in effect claiming recompense for wear and tear on her washing machine and that there had been no decision on this aspect by the respondent hitherto. In any event he submitted that the provisions of section 26 of the Act gave a discretionary power to the respondent and there had been no evidence that there have been any wrongful exercise of its discretion. On the question of jurisdiction counsel submitted that the provisions of section 89 cover the list of persons who have status to bring review and appeal and that whilst the appellant may have been the representative of the claimant at the time the respondent's decision was made, she was not the claimant's representative at the time she sought review, and subsequently appeal, from the decisions so made. Counsel relied on the decision of this Court in Christensen (Decision 33/97). Finally counsel submitted that the decision of the respondent to decline the washing machine was made after obtaining specialist's advice and further, the appellant had signed the statement of goals which implemented the Comprehensive Needs Assessment. DECISION Jurisdiction The jurisdiction of this Court to consider review decisions by way of appeal is a specialist jurisdiction provided for under the Accident Rehabilitation and Compensation Insurance Act 1992. Section 91 of the Act establishes the jurisdiction of this Court to hear an appeal against any decision made under the review provisions of section 90 of the Act. Section 91(2) thereupon sets out the persons or classes of persons who may bring such an appeal. Subsection 2(a) states that an appeal may be made by The claimant concerned or any person acting on behalf of the claimant. The appellant could not come within any of the other categories of section 91 (2). Thus from the plain meaning of section 91(2)(a) the appellant would be said to have been acting on behalf of Kali King during the time that Kali was in her care and in respect of any decision that the respondent may have made concerning its provision of care or services for Kali. The decision letter of the respondent which is the basis for the review and appeal contains a substantial number of matters which were for Kali's benefit and it is noted that the two items that were declined were intended to be for her benefit, and the washing machine, had it been approved, would only have indirectly benefited the appellant as Kali's care giver whilst she remained her care giver. At this point I should note that there is no evidence that Kali's mother, with whom she is now living, is seeking to take up the cudgels as it were to try and obtain a washing machine. If she were to step into the shoes of her sister then it would be a different circumstance and she would simply be regarded as the successive representative of the claimant and have status and this Court would have jurisdiction. However such is not the case and the plain fact of the matter is that the aspect of the respondent's decision which the appellant seeks to have determined in her favour is one which cannot be said to have been continued by her for benefit of the claimant in her capacity as representative of the claimant, but rather for her own benefit, she making it quite plain that she was seeking some payment or reimbursement for the wear and tear on her washing machine. Looking at the matter from a purely jurisdictional point of view I find that the appellant had no status either to pursue review or ultimately to bring an appeal against a review decision in the personal capacity that she so sought to bring it. The short answer therefore is that this Court has no jurisdiction to hear this appeal on its merits but in the event that this decision should be proved wrong I simply note that the appellant is not contending that the decision not to provide a washing machine was wrong, but rather that the respondent has not seen fit to make some form of ex- gratia payment to her for the wear and tear on her washing machine which did occur during the time that Kali was in her care. The appellant did not contend that the respondent's decision not to provide a washing machine was wrong, or, more specifically, a wrongful exercise of its discretionary power, but rather that as a corollary of that decision it should make some gesture towards the cost of wear and tear on her washing machine. Strictly speaking, I have to say that the respondent has not made any identifiable decision on that question and it is the appellant alone who has changed the focus from a decision not to supply a washing machine to a non-decision about a payment for wear and tear. I find that on the substantive question the respondent was quite correct in its decision to not direct that a washing machine be provided at the time that the appellant was the claimant's caregiver and that the issue which the appellant has propounded in this Court is possibly premature in that the respondent does not appear to have made any decision on it, or if it has, it is not the decision which is the subject of the current appeal. For the foregoing reasons therefore this appeal is dismissed. DATED at WELLINGTON this 18 day of November 1999 M J Beattie District Court Judge 14.99ngatai.doc(gm)