Pewhairangi v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA [2016] NZACC 294 ACR 270/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN HOROMOANA PEWHAIRANGI Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 September 2016 Appearances: B Thompson, counsel for the appellant F Becroft, counsel for the respondent Judgment: 4 November 2016 ____________________________________________________________________ RESERVED JUDGMENT OF JUDGE A N MACLEAN ____________________________________________________________________ [1] The issue before the Court is whether the respondent correctly exercised its discretion in a decision dated 29 September 2014 declining an application for transport for independence. [2] The parties are substantially in agreement as to the relevant factual background leading up to a grant of cover in 2012, for a treatment injury described as progression of the malignant melanoma on the left foot from stage 2bNxNO to T4bNxNO and metastatic disease from the left groin lymph nodes. Essentially the claim related to a failure to diagnose a malignant melanoma of the foot which resulted in a partial amputation. The appellant also suffers from a number of non injury related health problems, including gout and obesity. The nominal date of injury was fixed as 17 October 2005 covering a period of several hospital visits in New Zealand following a suspected puncture wound to the foot the previous year. This date seems to have been based on a report on 15 November 2011 from Mr Duncan, a Plastic Surgeon, when he concluded that a diagnosis of aggressive malignant melanoma had been delayed well past a date when earlier treatment might have avoided the need for amputation and/or generally avoided the need for the aggressive treatment necessary due to rapid metastising. [3] The diagnosis of melanoma did not occur until 2007, after the appellant had moved to Australia and he was diagnosed in a hospital there. He returned to New Zealand in 2009 but has been unable to resume his previous work as a truck driver. [4] Since 2009, the appellant has endured increasing pain and impaired mobility with a steady escalation of his weight, in turn leading to other health issues such as oedema and chronic ulcers. [5] After the treatment injury was covered, the appellant was supplied by the respondent with numerous entitlements, including weekly compensation, a lift recline chair, a four section bed to manage night time leg elevation, and a heavy duty mobility scooter to allow for mobilisation locally. [6] In October 2013, the appellant applied for a mobility van advising the respondent that, although up till then, he had the use of his daughter-in-law’s car, this was too small and was unable to carry his heavy mobility scooter. He noted that he was under the care of five specialists and Orthotics Ellerslie entailing a lot of travel. He also noted that it would allow him “to be totally independent and to have a better quality of life”. On 10 October 2013 Mr Crosby, a Service Manager indicated he “could not support a request for a vehicle”, and alluded to the fact that cover only extended to the left leg, but that other noncovered conditions of co-existing gout, renal impairment, hypertension and high BMI existed [7] The respondent arranged for a Transport for Independence assessment from occupational therapist Mr Morris. He reported on 21 February 2014. [8] Key extracts from that report include, after noting the history going back to June 2004,and that the covered treatment injuries were delayed diagnosis of melanoma and an injection causing an ulcer : [9] That it was very difficult for the appellant to get into his daughter-in-law’s car.  The appellant’s primary wheelchair is his mobility scooter. This is quite heavy, weighing 148 kg (1530 mm long and 670 mm wide). In addition to transporting this piece of equipment, the appellant said that he would also like to transport his rise recliner chair and that the scooter and chair should be transported inside a vehicle.  In terms of vehicles that would meet his needs, the only example Mr Morris could find was of a Mercedes Benz Sprinter high rooftop long wheel base (“Sprinter”). That vehicle, with its height and length, would allow the appellant to access through the rear end and then make his way to the driver’s position.  The Sprinter would need to be modified by adding a loading hoist and anchor points. Mr Morris also recommended a custom made driver’s seat allowing for swivelling and powered shifting back and forth.  Mr Morris confirmed that the Sprinter van was the only vehicle option that would accommodate the necessary loading hoist and allow the appellant to make his way from the back to the driver’s seat. Other options were not suitable because they could not cater for the scooter and/or, did not allow internal access. [10] After receiving that report, the matter was considered by the respondent following completion of a Transport for Independence Vehicle submission by the then case manager. The case manager noted that mobility taxis had been eliminated due to cost factor and availability. Also that the applicant has made it clear that a mobility taxi does not work as he has many times been left without transport when a mobility taxi has failed to show up for pick or they simply weren’t available. Or they were unwilling/unable to transport the mobility scooter. [11] The case manager noted the Sprinter was considered the best option to meet injury related needs, and that the cost of modifications, over and above the cost of the vehicle (approximately $100,000) would be $24,000. [12] On 29 April 2014, the Transport for Independence manager, in a note back to the case manager, queried whether the appellant was able to safely and easily access his daughter’s vehicle prior to 2007 and, whether he could be issued with a powered wheelchair and use mobility taxis. He also asserted that the appellant’s inability to access appropriate transport was not entirely due to injury related factors. The suggestion was that be BMA comment should be sought on what, of the appellant’s impairments, was injury related and what was not. [13] On 16 May 2014 the BMA, Dr Sandhu, opined that the appellant’s claim covered malignant melanoma and its consequences/metastasis/ulcer/wound infection but it did not cover obesity and related medical conditions. [14] The case manager, Preetika Kishore, responded and that included:  The appellant was able to access the vehicle prior to 2007, and t he was able to work for some time after the initial injury albeit with some difficulties.  The appellant’s weight gain had followed his inability to exercise which in turn was caused by the amputation and non healing ulceration.  A powered wheelchair would not be appropriate given the appellant’s size.  Other transport options had been considered. Taxis were considered to be unreliable with health and safety concerns and often a taxi is sent which is not suitable to his needs.  She noted a recent need to visit Manukau Super Clinic was frustrated because the taxi sent could not carry the scooter.  That a modified vehicle “would have a greatly positive impact on his life”. [15] An internal “decision rationale” dated 7 August, from Tracy Fisher, respondent service staff member, recorded “background information” namely: Mr Pewhairangi has asked ACC to consider providing him a vehicle so that he can transport his mobility scooter further afield. He would like to be able to access the community and attend his medical and injury related appointments. He had reported previously that he finds it difficult to attend appointments and socialise and this has affected him both mentally and physically. He is unable to travel as a passenger in a typical vehicle due to his physical health conditions and this is why he has applied for a modified vehicle to be purchased by ACC. He specified that this would be beneficial to visit family who reside outside of Auckland. Mr Pewhairangi is able to attend treatment related appointments currently with the assistance of mobility taxis around Auckland although he has previously stated that this option is not preferable due to unreliability of taxis and taxis not being of suitable need for him. The Transport for Independence Driving Assessment done by OTRS 10/2/14 concluded that on a Mercedes Benz Sprinter high rooftop and long wheel based van is the only option for Mr Pewhairangi that could accommodate his mobility scooter and support his physical condition. A second option of a modified vehicle with use of a powered wheelchair was provided however Mr Pewhairangi has previously stated that a powered wheelchair is not appropriate as he is a very large man and finds his mobility scooter more reliable. [16] The decision rationale summary concluded: My opinion is that mobility taxis be offered to transport Mr Pewhairangi to treatment appointments within Auckland and that a mobility vehicle be offered as an option for him to travel to visit family outside the Auckland region. [17] The same day a letter was sent to the appellant: We have approved help with the cost of your travel by taxi from your home to your place to treatment and back. We will ask Relimobi Auckland – Relion US Mobility Services to bill us directly for your travel. That is for up to one return trip per week from 11 August 2014 until 11 January 2015. We have additionally approved for the hirage of a mobility rental vehicle to assist you with transport outside of the Auckland region. This is for up to five days rental, via Rod Milner Motors, per month until 11 January 2015. [18] On 19 August 2014, a functional capacity evaluation that had been recommended by Mr Morris, was carried out, and the resulting report of 20 August 2014 noted that the appellant had demonstrated an ability to walk for up to 20 metres on an occasional basis. He noted: Mr Pewhairangi will be undergoing surgery to the left lower limb and he currently has limited capacity for having the left leg down due to swelling and skin eruptions. It may be beneficial for Mr Pewhairangi to undergo a programme to promote fitness and increase activity tolerance following recovery from the pending surgery. [19] On 26 September 2014, the appellant’s new case manager, Tracey Fisher, recommended that the respondent fund mobility taxis for travel to and from medical appointments and fund a mobility rental vehicle to travel outside of the Auckland region. [20] That same day, the Transport for Independence manager, noted that the case manager had located a taxi company capable of transporting the appellant and his scooter and agreed that: The best way to continue to meet Mr Pewhairangi’s injury related needs is the ongoing use of mobility taxis and the occasional use of a rental vehicle if and when Mr Pewhairangi needs to travel out of town to meet family. [21] Seemingly on the basis of that exchange, the respondent issued two decisions: After careful consideration the most cost effective option is for a mobility taxi and mobility rental vehicle as a more effective way of meeting your injury related transport needs. The purchase of a motor vehicle is not the most practicable option to meet your injury related transport needs. ACC agrees to funding taxis for medical appointments and if required will consider the rental of an appropriate vehicle. [22] The second decision, clarified what had been granted namely:  Funding for one return trip per week for the following 6 months, in a mobility taxi for travelling to treatment appointments.  Funding for a rental mobility vehicle for transport outside Auckland for a maximum of five days per month for the next six months. [23] The appellant then lodged a review application against those decisions, and also lodged a claim for mental injury arising from his physical injuries. That claim was initially declined, but then reconsidered and cover was granted on 27 March 2015 for:  Reaction to severe stress and adjustment disorders.  Recurrent major depressive episodes. Severe psychosis and  Persistent somatoform pain disorder. [24] In the meantime, Dr Roke had written to Tracy Fisher on 28 June 2015 further to what he described as “a comprehensive document” that had been sent in May but apparently “got lost in your system”. He said: Please note that his original treatment injury caused severe damage to his foot resulting in his inability to maintain his normal regular exercise. As a direct result his weight has increased with a number of complications which have unfortunately compounded the result of the original injury and his current condition is almost entirely due to that initial incident. [25] Points made at the review, and outlined in a prepared brief of evidence included:  Prior to the problems starting in 2004 the appellant had been working 70 hours per week with a busy active and social life with a lot of sports and much travel to see family.  As at the deemed date of injury, his mobility had decreased as a result of his foot condition but he was still leading a full and independent life.  His problems with mobility and subsequent weight gain accelerated after an operation in 2007, with recurrent ulceration (that was a covered injury).  The current Transport for Independence package being offered was unsafe and insufficient to restore his independence to the maximum extent practicable, in particular, the appellant had concerns about his ongoing ability to regularly see his family (many of whom lived elsewhere in New Zealand). That brief was supplemented by his housemate/carer, Ms Osbourne, clarifying aspects relating to independence problems. Around the same time the appellant’s general practitioner, Dr Roke, wrote that the treatment injury had caused severe damage to the foot resulting in an inability to exercise which subsequently caused weight to increase. [26] In a review decision dated 18 August 2015 declining the application, the reviewer noted the relevant statutory considerations, and key aspects of her decision included:  Something which is desired or even desirable to assist in independence is not something that the respondent is obliged necessarily to provide.  The complaints about the safety of mobility taxi/rental van should be treated with caution as the appellant had been using those services for some time and no complaint had been raised until recently. The respondent noted that the van does have safety belt/extensions.  The appellant’s suggestion that his own vehicle would restore his independence may not reflect the reality of his situation. There are factors other than transport availability which limit him.  The respondent had properly considered whether the scooter/taxi/rental van option would meet his needs.  It was proper for the respondent to take into account cost considerations and frequency of use. [27] For the purposes of this appeal, there is some further evidence by way of an affidavit dated 20 April 2016 describing usage of a rental van in the months since the issuing of the review decision last year. Also, Ms Osbourne confirmed that when she attempted to book the rental van for May this year, she was told that the van was entirely unavailable for three months and not available until August. [28] Because it helps provide a total context in understanding of how the appellant has come to his present situation, some extracts from the appellant’s brief of evidence are pertinent. These include:  When describing the situation in 2004 when foot problems first emerged he had been working 70 hours per week driving all over the north island.  That at that stage he was: Very active with a busy social life. I loved going fishing, playing golf and playing rugby. I remember playing my last game of rugby when I was 52; it was at a golden oldies tournament and I played five full games of one day and then the next day I went to work. That’s how fit I was. I’ve always been a big man and back then I’d say I weighed about 120 kg. I wasn’t unfit at all though and not “fat”. I would spend a lot of my time with my friends around Te Puke. My friends were a group of guys who were on the same driving roster as me. I would go out to the country and western club with them, play golf and fish with them, or just go around to one of their houses and have a BBQ. Keeping up with my friends was very important to me; I had such a good time with them all. Even more important I was seeing my family. I have two sons who were then living in Tauranga and Paengaroa … I would drive to see both my boys and their children (my mokopuna). … this contact with my boys meant the world to me.  He then described problems with cellulitis in 2005, and the linkage then with an untreated ulcer.  He noted that despite these problems: In October 2005 I was still living a very full life and still was very independent. … I would still regularly travel … most importantly I would still go to visit my family all the time. I did this every weekend I could. Visiting my mokopuna made me forget about my pain it was like therapy for me. I was also very motivated to visit one of my grandchildren who is the first of the new generation in the Pewhairangi bloodline. This is very important to me and so I wanted to be with him as often as I could be.  After describing events in Australia with a driving job there, a further bout of cellulitis, then the diagnosis of melanoma and an amputation operation in February 2007. He said: After this operation my trouble with pain and mobility really got a lot worse very quickly. …because of this in early 2009 I made a decision to come back to New Zealand where I could access free care. I first moved back to Te Puke but shortly afterwards moved down to Gisborne to be nearer family who knew me and knew my history.  Bringing matters up to date he described the background to making a decision to move to Auckland from Gisborne to get better access to specialists and the ongoing deterioration of his health with intense pains and regular district nurse visits. He said: My mobility is very badly restricted. On a good day I can walk may be 50 metres on a bad day I’m stuck in my recliner chair and cannot move. I try my best to do some walking on the better days just so I can may be stop putting on even more weight. I am now at about 200 kg. When I walk I get scared that I might not be able to get back to my chair. I get tired very easily. Because of my poor mobility I was often stuck in our little unit in Otara for weeks on end. It was depressing not being able to go anywhere. The ACC then provided me with a mobility scooter which is wonderful because it lets me at least get out of the house. I can do things like get to the Countdown to do my shopping and visit with people who are close by. Really though I can only use the scooter to travel a couple of kilometres from home at most. Although footpaths can seem quite flat, a lot of them actually aren’t and using the scooter for long periods of time really takes it out of me. For example there was one occasion where I had to take my scooter to the clinic to visit a specialist (I had ordered a mobility taxi but it didn’t turn up). I would say that the clinic is about 10 kilometres from my house The trip to the clinic took 45 minutes and by the time I arrived I felt exhausted. … the ride home was even worse – I got a flat tyre and it took me 2.5 hours to get home. I was stuck in my reclining chair for days recovering from that trip. So in terms of independence the scooter opened the door for me a little. But it definitely isn’t enough to really give me my life back because it doesn’t allow me to travel across Auckland and elsewhere in New Zealand to see my friends and especially my family. I need a vehicle I can get in and out of easily and that allows me to take my scooter along with me. To me being able to see my family regularly is more important than ever before. My sons have nine children of their own and from them I now also have two great grandchildren so my family is growing. They are spread across the North Island and some I haven’t been able to see for years. That is very hard for me; it brings me a lot of sorrow.  He then described his concern that he was then shortly likely to become the elder of the family and the need for him to “come home but because of my injury I cannot”.  He said: I do not like the mobility taxis that are provided for me. They are vans which do allow me to load my mobility scooter into the back which is good but the tax vans are built to cater for people with all sorts of disabilities and equipment including wheelchairs the rental van is better than taxis … the rental van does have … problems though. After I drive my scooter in from the back I have to lock it but the particular locks do not work very well with my scooter … I find I have to jostle it back and forth before I can lock it into place. This causes me quite a bit of pain. Probably the biggest problem with the rental van though is that lots of other disabled people want to rent it, and I’m only allowed it for five days every month. We have to book it in advance and sometimes we cannot get the van for the days we’d like because it has already been booked. Also we can’t use a van to get to events on short notice because it is already booked by then. When we do have the van we find that we have to cut our trips short because we have to have it back within the five day period.  He described meeting with David Morris, and how the proposed solution of the big Mercedes Benz Sprinter van, was the perfect solution concluding: With a van of my own I could get out of Auckland much more often and stay out of Auckland for longer. I could see more of my friends and more of my family both the old and the young. I could get to places/events on short notice, and could also cover shorter trips in much greater comfort and safety than in a mobility taxi. I would have my independence again, which is something I haven’t had for the last 6-7 years. [29] In her supplementary affidavit, Valentine Osbourne described a recent event : Last month Sol’s case manager asked us whether he would want the van for Easter and that we would have to book it quick because someone else would probably want it so we did book the van for Easter, and then an emergency arose and one of Sol’s close cousins became very ill and was taken to Waikato Hospital. We couldn’t use the van to go and see him, and so Sol was forced to use his daughter-in-law’s car which cannot carry his scooter and is too small for him to comfortably sit in. By the time we arrived at Waikato Hospital Sole was sore and tired. Then we found out there was no equipment capable of taking him from the carpark to his cousin’s room. He could not use the wheelchairs, the hospital staff and said he was too large and it would be a health and safety risk. So because he didn’t have his scooter, Sol was forced to talk to his cousin on the phone whilst I went upstairs to actually see him. If Sol had his own transport these problems would not exist. His quality of life and his independence would be so much better, not just physically but also mentally and emotionally. We could go anywhere and see anybody. For Sol this would mainly mean seeing his grandkids/great grandkids and seeing his uncle back home near Gisborne. He could see family that he hasn’t been able to see for years and to Sole that would mean getting his life back. [30] In a recent affidavit prepared for this appeal, dated 26 April 2016, the appellant further updated the situation, explaining how in March of this year he had planned to take an arranged rental van to Tokomaru Bay but discovered unfortunately the back door of that van cannot be opened or shut from the inside. On a trip in lieu of the planned trip to Tokomaru Bay, when going to the shops, he realised he could not actually get out. As he put it: This inability to get out of the replacement van is a real problem for me. I feel I can’t take the van anywhere by myself. With the original van, the back door was automatic and you could open it with a remote. This meant I could go places by myself – all the trips I took down to Tokomaru Bay were by myself, Val wasn’t with me … so with this replacement van I can only use it when Val can come with me. Val rang my ACC case manager and told her about the problems with the replacement van. ACC say they cannot do anything about it because they are committed to using this particular hire company. I still need to keep losing weight though. After my five days with the replacement van earlier this month I decided to take my daughter-in-law’s car down to Tokomaru Bay. I still find it really hard to get into this car and even harder to get out – but at least it is actually possible for me to get out of it on my own. The difficulty with getting out of my daughter-in-law’s car is that I can’t swivel to get two legs out onto the ground at the same time. I can only put my right leg out and then I have to grab onto the door and use it like a crutch. This is really hard and the trip down to the coast this month was really uncomfortable. It was great to be able to swim again though. Things would be so much better for me if I had my own van. I wouldn’t have to choose between seeing my family and going to the coast for my health. I could travel places by myself without worrying about how I’m going to get out of the vehicle. My life would be changed. I note that that affidavit predates by a week the report of Dr Sullivan which will be referred to later. [31] In addition to the material from Dr Roke, which the reviewer had, part of the evidence for this appeal is a further letter from Dr Roke dated 27 March 2016, in response to a letter from counsel for the appellant. The combined outcome of the two letters resulted in the following: Q: In your opinion is ocean based exercise an advisable course of action for Sol? Would it be safe for Sole to enter the ocean in Auckland? A: In summer, some Auckland beaches would be okay. Q: Can you confirm whether (since approximately August 2015) Sole has in fact lost weight? If so how much weight has he lost. A: 20 kg since 2 January 2015. Q: In your opinion can this weight loss (if any) be linked to Sol’s ocean exercise? A: Partly. Q: Can you describe the benefits (if any) that Sol would experience due to further weight loss. A: Further increased mobility, better respiratory and cardiac function, better control of diabetes and less wear on weight. Q: Can you confirm that continued weight loss would make viable any treatment options that are currently ruled out? What are these treatment options (if any)? A: Bariatric surgery. If he achieves a BMI less than 40. For completeness, sadly, I note a recently letter dated 3 May 2016 from Dr Sullivan, an oncologist at Auckland City Hospital which notes that the appellant has now been diagnosed with stage IIIB squamous cell carcinoma left upper lobe with mediastina invasion. Dr Sullivan noted the totality of medical history including (1) COPD (2) previous melanoma left foot with partial amputation and left inguinal node dissection (3) lymphodaema of both legs with previous ulcers (4) hypertension (5) morbid obesity – weight today 169 kg (6) obstructive sleep apnoea – previously trialled CPAP and unable to tolerate (7) type II diabetes (8) vertiligo. As Dr Sullivan noted currently Sol has been deteriorating gradually. He has lost an excess of 30 kg in weight although much of this has been intentional. … I’ve explained to him I think there is a high risk he will have advanced incurable cancer albeit this is hard to determine. The Law [32] The following provisions of the Accident Compensation Act are relevant to this review:  The key sections are: Section 70 which provides a claimant is entitled to be provided with rehabilitation to the extent provided by this Act to assist in restoring the claimant’s health, independence and participation to the maximum extent practicable but is responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury.  Section 79 explains that the purpose of social rehabilitation is to assist in restoring a claimant’s independence to the maximum extent practicable.  Section 81 spells out the respondent’s liability to provide “key aspects of social rehabilitation” including transport for independence.  Clause 12 of Schedule 1 explains that transport for independence means assistance with the cost of for example, escorted travel by vehicle, modifying a vehicle, purchasing a vehicle, travelling by public transport, travelling by taxi …  Section 81(4) spells out certain cumulative conditions “as needing the key aspect”, that need to be satisfied:  Assessment under s 84 as to need.  The cost and the relevant benefit to the claimant of the Transport for Independence Service for which the claimant has lodged a claim.  The difficulties faced by the claimant in relation to the transport used before his personal injury including driving, access to the vehicle, and transporting any essential mobility equipment.  The need for the claimant to own or have access to a vehicle having regard to the times at which and the frequency with which the claimant is likely to need that form of transport.  Whether and when the limitations caused by the personal injury are expected to improve.  In accordance with the criteria set out in clauses 13 to 22 of Schedule 1.  That it is required as a direct consequence of the covered personal injury.  That it must be of a type normally provided by a rehabilitation provider.  The key aspect must be necessary and appropriate and of the quality required.  Clause 21 prescribes certain cumulative factors required to be taken into account when deciding whether to provide or contribute to the cost of transport for independence including:  The rehabilitation outcome that would be achieved by providing the particular social rehabilitation.  The alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way. [33] Cases such as Webby1 and Tuhakaraina2 and Herlihy3 have established that the provision of social rehabilitation involves the exercise of a discretion by the respondent and the respondent must have regard to a number of factors when exercising that discretion. [34] That the appropriate approach to discretionary issues was confirmed by the Supreme Court in K v B 4 where it was stated: A general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter (1) error in law (2) taking into account of irrelevant consideration (3) failing to take account of relevant consideration or (4) the decision is plainly wrong. The Case for the Appellant [35] The appellant accepts that the issue involves the exercise of a discretion, but submits that that proper account of mandatory factors in the legislation, when making a rehabilitation decision, have not been met. Mr Thompson submitted an analogy with Bogle v ACC5 where the court observed: None of the matters set out as mandatory considerations for the Corporation were in fact considered when the Corporation determined Ms Bogle’s request … as a result of the Corporation’s total failure to consider the matters the decision is manifestly wrong in law and must be set aside. [36] The submission for the appellant is, that in rejecting the request for a mobility van, the factors taken into account by the respondent “were inappropriately few”. [37] It is submitted that the internal documentation shows that the decision was made after a discussion between Ms Pascoe and Ms Fisher and that they gave thought to: 1 156/01 2 138/06 3 196/2006 4 [2010] NZSC 112 – 8 September 2010 5 [2015] NZACC 79  Whether the appellant was able to access his own vehicle prior to 2007.  Whether the appellant could be issued with a power chair (rather than a scooter).  Whether the appellant’s obesity was related to his covered injury.  Whether the appellant could travel as a passenger, and  The cost of providing the appellant with his own mobility van. [38] The appellant noted that another staff members, Ms Kishore, had previously conveyed other factors to Ms Pascoe including the problematic nature of the mobility taxi service available, and the physical and mental effects of the appellant’s inability to socialise, and that there is no evidence to show that Ms Pascoe or Ms Fisher took those factors into account. [39] It is submitted in the context of s 81(4)(a) the only option which meets the appellant’s transport for independence needs is his own mobility van. That other options were considered and explicitly ruled out. [40] In the context of s 81(4)(b), linking with the requirements under clause 21 of Schedule 1, and the mandatory conditions therein set out, a rehabilitation goal listed in the latest IRP is return to pre-injury function. As at October 2005, the appellant had led a full and independently mobile life, which represents his pre-injury function. Further, that provision of his own mobility van would have been much more consistent with reclaiming that level of functioning, when compared with limited use of taxis and a rental van, noting the problems described by the appellant in his 20 April 2016 affidavit and, in particular, that a rental van was simply not available for three months. This suggests, submits the appellant, that the respondent failed to take that rehabilitation goal into account. [41] As to the cost and relevant benefit under clause 21(b) that the respondent clearly considered the cost of providing the appellant with his own mobility van (noting that the sum involved is around $100,000) however clause 21(b) directs the respondent to consider cost of benefit to the claimant and there is nothing to show the respondent considered that particularly in terms of the benefit that a mobility van would afford not only in terms of independence but also in terms of the positive benefits for his physical and mental wellbeing. Further, that is particularly important now that the appellant has a covered mental injury, which is foreseeably exacerbated by an enforced lack of independence. The benefits to the appellant of a mobility van are well described, it is submitted, in his affidavit of 20 April 2016. [42] As to the “need” for the appellant to have his own vehicle – clause 21(d), because as at the deemed date of accident he was independently mobile and at that stage, relied on his car daughter in laws car, to maintain his family involvement, but now that he is an elder his ability to spend time with his family has assumed even greater importance and his family do not live close to him. Further, that the appellant has given evidence that because of ongoing ulceration, infection in his left leg can occur rapidly and not having to rely on taxi transport would mean he could access treatment as soon as possible. The affidavit also points out, that problems that arise from having only limited access to a rental van and the replacement rental van being unsuitable, in that he cannot operate it by himself. That, coupled with the recent information of blocked access for three months further exacerbates the issue. [43] As to alternative means of transport available in the context of clause 21(e,) the appellant notes that the respondent has considered taxis and a rental van as an alternative means, but that there is nothing to show that the respondent took into account the shortcomings of those options i.e. poor locking mechanisms, seats which are too small, unreliability and competition for use. [44] The appellant submits that in the context of clause 21(h), as to the expectation of improvement or injury related limitations, the reality is that his mobility problems are not going to improve. Whereas, paying for taxis and a rental van might have been reasonable as a temporary solution, there is nothing to show that the respondent has taken into account whether that was reasonable in light of the permanent nature of the appellant’s problems. [45] So far as s 81(4)(c)(i) is concerned, the reality is, it is submitted, that transport for independence is a direct consequence of the covered injury. The respondent has accepted that there is a need for a large mobility scooter, but it also follows that there is a need to transport that scooter for more than short distances. The appellant notes that one of the apparent concerns of the respondent is whether his obesity (which has an effect of making standard mobile wheelchairs unsuitable )is not a covered injury, but this fails to take into account Dr Roke’s evidence that the weight gain is a direct result of the covered injury because of the restrictions on exercise. The Submissions for the Respondent [46] The respondent’s submission is succinctly put in the written submissions prepared by Mr Tuiqereqere namely: The long and short of it is that the question is not whether the Court agrees with the decision the Corporation has made, or whether the Court would have made a different decision, but rather whether the Corporation has considered the appropriate factors in making its decision. If the Court determines that it has, then it would not be appropriate to disturb the decision. Further, the submission is that while it can understand why the appellant would disagree with its decision there is no evidence to indicate either an error in law and/or a failure to take into account some relevant matter and/or a failure by accounting for an irrelevant matter or that the decision was plainly wrong. Further that the respondent carried out the appropriate investigations including a Transport for Independence assessment, a Function Capacity Evaluation, a number of discussions with the appellant and general information gathering and consideration of the matter by the National Transport for Independence Panel. That in exercising its discretion the respondent considered the following factors:  Actual transport needs.  The cost of funding a vehicle of modifications which was in excess of $100,000.  Whether there was a reasonable alternative to providing a modified vehicle.  The funding already provided and  The proportion of injury versus non injury related need. [47] The respondent submits three broad categories of need has been identified namely:  The need to access his immediate community.  The need to access the wider (still local) community predominantly for treatment and  The need to access places outside of Auckland visiting his friends and family and maintaining his social ties. [48] The respondent acknowledges that the provision of a modified vehicle would address all those three categories of need but at a cost of more than $100,000 so that reasonable alternatives must be considered. It submits that: It cannot be forgotten that ultimately the scheme is funded out of the public purse and the Corporation must manage funds responsibly. Failure to do so jeopardises the sustainability and longevity of the scheme. [49] The respondent points to the case of Wood v ACC6 where His Honour Judge Joyce QC held: It is discernible from clause 22 quite complex in the overall provisions that Parliament has recognise (presumably because big ticket items can be involved) a need for care and restraint when it comes to what the Corporation may do when the provision of a vehicle or the meeting of modification costs for one is the issue … the Corporation’s resources must surely be husbanded in a fashion best designed equitably to serve the tens of thousands of claimants on its books and without, in any individual case, providing more support than is truly desirable or necessary … [50] The respondent submits that it has appropriately funded a heavy duty mobility scooter, and also made arrangements for a reliable service through a mobility taxi company for local (Auckland) travel. Also reasonable arrangements for a rental van for journeys outside of Auckland. Further, that the appellant’s transport needs, do not arise from his covered injury in isolation, noting that he is chronically unwell from a wide range of comorbilities, in particular obesity which it describes as non 6 [2013] NZACC 173 injury related conditions. Accordingly, it is submitted that funding a vehicle costing in excess of $100,000 where a large portion of the need for that vehicle arises out of a non injury related need, is simply not appropriate. [51] The respondent further noted in its written submissions : As a matter of interest between the date the Corporation approved funding for mobility taxis and a rental vehicle, and April 2015 the average monthly cost of mobility taxis was $78.30 a month providing a very cost effective option. A rental van was used during that period on the following occasions:  22 December to 31 December 2014 – cost $107.86.  1 January to 31 January 2015 – cost $3,124.37.  5 February to 9 February 2015 – cost $505.  2 April to 6 April 2015 – cost $743.00. [52] The respondent submits, that the fact that the appellant had been using these services suggests that they are suitable. [53] The respondent accepts that where a van is needed, it must be prebooked and this means that trips have to be planned in advance, which may be from time to time an inconvenience, but not enough to warrant public funding of a vehicle. The respondent has a responsibility to restore a claimant’s independence to the maximum extent practicable. To expect perfect solutions, is unrealistic. Injuries will inevitably result in problems, pain and inconvenience amongst other things but – the scheme is not equipped or designed to fix it all. [54] Further, that the concerns in respect of the appropriateness of the rental vehicle are new, noting that the evidence for the review hearing was that the rental vehicle was entirely appropriate, but now a new vehicle is being used. The further submission is made however, that if the appellant’s contentions in relation to specific issues with the existing rental van are correct, then they are issues which the Corporation can deal with and work around. They do not mean that the Corporation’s decision not to fund a rental vehicle, in principle, as opposed to purchasing a modified vehicle is wrong. Further, that if the appellant wishes to access waterways to swim and maintain exercise then he has the ability to do so within the greater Auckland area, and could utilise taxi funding to do this. But, as noted at the review, the appellant’s case manager confirmed that the arrangements were flexible and if further funding was needed then all he needed to do was ask. The key is reasonable communication of needs. [55] Further, that the appellant used the mobility taxis for an extended period before raising safety issues. [56] In summary, the respondent’s submission is that the respondent has considered all of the relevant factors and arrived at a reasonable and appropriate solution. While the appellant is not happy with the outcome it is not a case where it can be said that the respondent has inappropriately exercised its discretion. Analysis and Discussion [57] The cases I referred to earlier indicate that generally the approach of the Court to the exercise of a discretion, as in this case, is a cautious one no doubt reflecting the fact that the respondent is the custodian of a limited resource to provide not just for the individual needs of a particular claimant but also to balance that with the thousands of applicants on its books. [58] For the Court to intervene means that one of the factors outlined in K v B needs to be identified. In this case the appellant’s submission is that generally the respondent as a collective whole (recognising that individual views within the internal process differ depending on the perspective under consideration), has paid too much regard to irrelevant matters and in particular not enough to relevant matters. [59] Coming through strongly on an overall assessment of the evidence, whilst not specifically articulated, seems to be that the concept that the substantial capital cost (in the region of $124,000) is a factor. However, as Mr Thompson pointed out while cost efficiency is a factor the respondent can take into account, clause 21(1)(b) also describes “the cost and relevant benefit to the claimant” not the respondent. [60] I explored with counsel at the end of the appeal issues around the flexibility of the respondent when faced with a claim of this type. It appears that generally the approach is somewhat of a “all or nothing” approach i.e. it is either the provision of the capital cost of a suitable new vehicle, or some sort of outsourcing arrangement with apparently no ability to consider other possibilities such as a good quality second hand vehicle of the same type. [61] A factor which probably lies in the background, particularly in light of the very recent sad prognosis with regard to further cancer, could well be the issue , even if a new vehicle of the type proposed by the appellant in light of the appellant’s present age (he is now aged 64), and deterioration of his general medical outlook in the 3 years since the decline deciision , could mean that his ability to drive a vehicle may be somewhat limited, so that from a cold blooded cost benefit analysis there is a questionmark there. However, those sorts of considerations, do not appear to be articulated in the evidence itself of the internal decision process. [62] However what does come through quite clearly, in my view, is that in making the final decision there has been somewhat of an overemphasis on the appellant’s obesity as an uncovered consequence which seems to fly in the face of Dr Roke’s unchallenged evidence that there is a direct causal link between that and the covered injury. That emerges from Mr Crosby’s early view in October 2013 ,and from Dr Sandhu in May 2014. It also seems to be a relevant factor in the decision of Ms Fisher and Ms Pascoe Further, that in turn, there has been an overlooking or downplaying of the requirement to restore the appellant to his pre-injury independence which has been very clearly outlined in the affidavits filed. [63] Also apparent in the deliberations through the decision process seems to be an element of “well he hasn’t complained before”, about taxis or rental vehicles but a failure to recognise the changing situation particularly ,what could be described as a s self reinforcing downward spiral through the practical hurdles of trying to work with taxi companies which have been demonstrated to be at times unreliable and/or inflexible coupled with an apparent degree of inflexibility about having access to an appropriately kitted out vehicle for longer trips. That in turn has put barriers in the way to the appellant’s desire to exercise through swimming and lose weight . [64] One detects also, a failure to acknowledge the appellant’s particular cultural concerns. By that I mean the fact that pre-injury he was,and remains very much whanau orientated ,and as he ages his responsibilities and the expectations on him , in that area have grown. [65] Mr Thompson, both in his written and oral submissions communicated in a very articulate and persuasive way, the enormous frustrations and difficulties his client has experienced in trying to do his best to get back as close as he can to his pre-injury independence in terms of travel and the efforts he has made and wishes to make in terms of exercise such as swimming to try and get his weight down hopefully to a stage where his BMI is sufficient, as discussed by Dr Roke, to look at Bariatric weight reduction surgery. It doesn’t take much imagination to appreciate that trying to work with a taxi service to do that within the Auckland area in terms of access to swimming points, and/or with the limited rental vehicle available , to nourish his family roots on the east coast are very real barriers .. [66] Accordingly, I am of the view that in this case the respondent has failed to take into account relevant considerations of the type outlined and should reconsider the matter. As a result the appeal is allowed. [67] The review decision is quashed and the respondent’s decision set aside. The respondent is directed to further reconsider the application paying particular regard to the pre-injury independence of the appellant, and the practical inconveniences about the actuality of taxi and rental vehicle support available. In particular not to place as much weight on the fact that obesity is a major factor in the particular vehicle configuration requirements but acknowledging that the weight gain is necessarily causally linked with the injury. [68] In making this decision, I am conscious that the appellant’s health prospects h coupled with his age, may mean that the ground is constantly shifting. That may mean that some of the appellant’s reasonable expectations and prospects at the time of his application and even as at the time of the review,have changed and clearly that will need to be taken into account. It may be that with proper consultation another solution with more flexibility and certainty may be able to be resolved .If not, the respondent will need to in due course issue a new decision which will have fresh review rights. [69] The appellant is entitled to costs but I am confident that counsel can resolve them between them. If they cannot be resolved within a fortnight I can determine the issue following the filing of memorandum but ask counsel to note that I will be functus officio as from 24 November 2016. an mailed Judge A N Maclean District Court Judge Solicitors: Hazel Armstrong Law, Wellington for the appellant Medico Law Limited, Auckland for the respondent ACR 270-15-Pewhairangi