Rogers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 205 /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 HELEN SUSAN ROGERS of Wellington Appellant (Appeal No. DCA 33/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr D Jaques, advocate for the appellant, and from Ms C Taylor, counsel for the respondent with the request that I issue a decision on the papers. While the review officer and counsel for the respondent have dealt with the issue on the basis that it is an application to review the decision of the respondent made on 22 October 1997 to refuse to lift the suspension of the appellant's home help entitlement, I consider that the issue really is whether the original decision of the respondent to suspend the payments was correct. In my view the question of reinstatement would probably have to be accompanied by a reassessment of the appellant's needs. The appellant suffered serious back injuries in 1986 as a result of which she has over the years become entitled to various payments from the respondent. The appellant was in receipt of home help payments when the respondent investigated her position as a result of which the investigator hired to check the appellant's premises found that on a number of occasions upon which claims for home help entitlement were 2 lodged no person arrived at the appellant's address between the hours stated on the application form as the periods for which the home help had been undertaken. I understand that that led to a prosecution of the appellant which has now been resolved by her acquittal. After an interview between Mr Parkes the investigator employed by the respondent and the appellant and her husband the respondent proceeded with the prosecution. However, Mr Jaques on behalf of the appellant applied for reinstatement of the home help payments on the basis that the investigation had then been completed and the appellant's need for home help had not changed. The record of the interview between the investigator and the appellant and Mr Jaques indicates a rather sloppy arrangement whereby neither the appellant nor her husband, Mr Jaques, was present at the house at the time it was alleged that the home helper had performed her duties. The appellant left the home helper to complete the application forms for payment of the home help and after receiving payments Mr Jaques paid the home helper in cash. As far as I can see no receipts were obtained. The appellant said that she assumed when returning home on the various dates which were in question that the work appeared to have been done and was satisfied with it. She said that she did not know whether the designated home helper or someone nominated by her had undertaken the work but she was satisfied that it had been done, although she did not know what time of the day it had been done. The application for reinstatement was declined by the respondent and an application for review against that decision was lodged. Mr Jaques' submission to the review officer was that there could be no suggestion that the appellant herself had carried out the home tasks for which she required the home helper. Mr Jaques said that the respondent had the power to suspend home help while the investigation was carried but that on completion of the investigation it should have been either terminated or reinstated. The review officer heard evidence from Mr Parkes the investigator employed by the respondent in which he indicated that on certain dates he had watched the house and found that no person came during the hours specified in the claims for home help payment. While the appellant was present at the review hearing she did not give evidence which the review officer considered was a matter of concern. The review officer found that there was no evidence on which it could be established that the designated home helper had either cleaned the house or been paid. The appellant has lodged an appeal against that decision. The appellant has provided the Court with an affidavit in which she confirms her presence at the review hearing and the fact that she heard evidence from Mr Parkes. She said that she thought the review officer had believed what she said and that he had in fact questioned her and Mr Jaques if he required further information. The appellant said that to the best of her knowledge she thought that the home helper had been the person who had cleaned her house. 3 Mr Jaques has submitted that the review officer should have given the appellant the opportunity to give sworn evidence and that his failure to do so amounted to a breach of natural justice. He submitted further that while the appellant accepts that the specified home helper did not attend her home while Mr Parkes was observing the property there was no reason to believe she had not done so at some other time or had appointed some other person to do it. Ms Taylor has submitted that there can be no suggestion that the review officer failed to observe the rules of natural justice. The appellant was present at the review hearing which was conducted on her behalf by her husband Mr Jaques, an experienced advocate, who could have called her to give evidence if it was proposed to take exception to the irregularities demonstrated by Mr Parkes. Ms Taylor submitted that s.26 of the Act provides that it is an objective of the Act to provide for the social rehabilitation of an injured person and that for the appellant to be entitled to home help assistance the respondent must be satisfied that such assistance will meet the objective in s.26 which is to restore the appellant's independence. She submitted that if the appellant ceases to satisfy the respondent of the need for such assistance then the respondent is entitled under s.73(1) to suspend further payments of the entitlement. She submitted that on the basis of the evidence, particularly that of the investigator Mr Parkes, there appeared to be no requirement for further home help assistance. The evidence established that while the appellant signed numerous claim forms for home help weekly reimbursement, these noted the hours at which the home helper was allegedly present at the house which was contradicted by Mr Parkes on the numerous occasions which he observed the property. While the appellant said that she could not truthfully say whether or not the home helper had attended the property she thought the work had been done either by the designated home helper or someone on her behalf. If that was her evidence I agree with the review officer that it would have been appropriate for Mr Jaques to have called the appellant to give that specific evidence at the review hearing, but he chose not to do so. I consider that on the evidence there was certainly a serious doubt as to whether the home help was being provided and, if it was not, then that raised the question of whether the appellant continued to require such help. I consider that there were therefore sufficient grounds for the respondent to suspend further payments. As I said at the beginning of this judgment, I have some doubts as to whether the issue should have been reinstatement or whether it was that the original decision of the respondent was properly made. I consider that the original decision to suspend payments was correct. As there is no evidence to contradict Mr Parkes' evidence as to his observations at the property either from the appellant or from the home helper, I consider that the respondent is therefore entitled to assume that the appellant is no longer in need of home help. If she does require home help I consider that a formal application for a new assessment is required. If the assessment demonstrates an entitlement then it will be necessary 4 for the appellant to enter into a more formal arrangement with a home helper such helper to be approved by the respondent and all payments made to such helper to be confirmed by the issue of receipts so that the situation which has now arisen can be forestalled. I consider that it has not been demonstrated that the decision of the review officer was wrong and the appeal is dismissed DATED at WELLINGTON this 15 M day of September 1998 A W Middleton District Court Judge dca3398.doc(rd)