Elkerbout v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 45 199 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 JOSIE ELKERBOUT DCA 93/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of February 1999 APPEARANCES: Mr A Rowlett advocate for appellant Mr L T Davies counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision of 15 November 1996 to cancel the appellant's Home Help entitlement was correct. 2 BACKGROUND In March 1993 the appellant suffered an injury to her back whilst lifting. The appellant applied for Home Help in June 1993 and she was initially assessed as being entitled to a maximum of 10 hours per week. That figure of 10 hours per week was confirmed in a reassessment made on 21 December 1993. In May 1994 the respondent ceased payments for Home Help and Child Care on the basis of medical evidence which the Corporation had. That decision was reversed on review and the appellant's entitlement to Home Help was reinstated. A further reassessment was carried on the appellant's Home Help needs on 1 May 1996 and this assessment identified 16 hours per week. Despite that assessment the Corporation advised that it would only allow the sum $80.00 per week rather than the $160 which the assessment specified. That decision also went to a review hearing and the hearing of that review was 17 October 1996 and in a written decision dated 13 November 1996 the Review Officer found that the appellant was entitled to the 16 hours per week Home Help and therefore the decision of the Corporation to limit it was revoked and the hours and amount per week confirmed. Two days after the delivery of that decision the appellant is advised in a letter from the Corporation which stated as follows: "The Corporation has recently been considering your ongoing entitlement to Accident Rehabilitation and Compensation Insurance Corporation benefits. In accordance with Section 73 of the 1992 Act, the Corporation shall , if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive compensation and rehabilitation assistance under this Act, suspend or cancel that compensation/assistance. In terms of Section 73(1), information recently obtained confirms that you have been falsely claiming home help and child care payments, diverting money intended for any helper or carer to your own uses. It is an offence under the provisions of section 229A Crime Act 1961 to use a document for pecuniary advantage, in this case home help and child care claim forms. I would also like to point out that in terms of Section 166(1), you have committed an offence by leading the Corporation to believe that the claims for home help and child care were genuine. Your payments of home help and child care have been ceased pending further enquiries." It is that decision which is now the subject of this appeal. It transpires that the appellant was being investigated in relation to her entitlements and on a date unknown three informations alleging fraud were laid in the Wanganui District Court relating to alleged irregularities with the payment of persons for Home Help and/or whether such Home Help had in fact been carried out. At the review hearing in respect of the decision to cancel her Home Help entitlements, the Review Officer heard evidence from two persons namely a Mr Heta and Mrs Singh. The Review Officer described their evidence as being concerning payment by the Corporation to the appellant for Home Help work that did not happen. It being Mrs Singh's and Mr Heta's evidence of Home Help being claimed and either the helper not having done the work or not being paid. Both Mr Heta and Mrs Singh gave evidence on oath. The Review Officer accepted the evidence of these witnesses and therefore upheld the decision of the Corporation to cancel. It is to be noted that as of the date of the hearing of this appeal the charges laid against the appellant had not been heard, they being defended, but a hearing was expected to take place sometime later in February. SUBMISSIONS Mr Rowlett, advocate for the appellant, submitted that the evidence given by Heta and Singh, whether it be accepted or not, did not out weigh the medical opinion and assessments of the appellant's need for Home Help. Mr Rowlett further submits that the evidence of Heta and Singh was in relation to specific incidents in the past and ought not to affect the appellant's entitlement to payments in the future should she have the need. It was submitted that the decision to cancel was not made on proper grounds and that whereas the initial decision to cancel was made when allegations of fraud were raised, the evidence given at the review hearing also seemed to cover questions of her need for Home Help as well as giving particulars of some alleged irregularities. Mr Rowlett finally submitted that the timing of the cancellation advice some two days after a Review Officer had confirmed the need and entitlement is indicative of the invalid nature of the Corporation's action. Mr Davies, counsel for the respondent, submitted the Corporation was concerned that the assessments did not fairly reflect the appellant's capabilities and that she was overstating her case. He submitted that this was backed up by the evidence of Mr Heta and Mrs Singh given at the review hearing. Counsel submitted that whilst it was acknowledged that there was medical support to state that the appellant was unable to 5 perform her household duties, there was no indication that these practitioners had examined her in her home environment. Counsel submitted that in the light of information on the file which indicated that the appellant did have an ability to perform household tasks and did so, the respondent was correct in its decision to cease payment. DECISION The Corporation purported to exercise its power of cancellation under the provisions of section 73(1) of the Act. This provision gives the Corporation the power to so cancel if it is not satisfied, on the basis of information in its possession, that a person is entitled to continue to receive that allowance. The letter of 15 November 1996 from the Corporation to the appellant advising her of the cessation of her Home Help entitlement indicates that the reason for it is that, it believes that the appellant has committed a fraudulent act by falsely claiming Home Help and Child Care payments and diverting money intended for helpers to her own purposes. That letter does not purport to contend that the appellant is no longer entitled to Home Help by reason of her no longer having a need for such Home Help. The fact of the matter is that the question of need and entitlement were canvassed by a Review Officer in the days preceding that decision to cancel and the Review Officer's written decision dated 13 November 1996 confirmed the appellant's entitlement to a particular level of Home Help, as that entitlement had been assessed pursuant to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992. It is those regulations which govern the question of whether a claimant is or is not entitled to Home Help. Regulation 4 of the Home Help Regulations provides that an assessment for entitlement of Home Help is to be carried out and a numerical rating assessed as set 6 out in the first schedule is to be the determiner of entitlement and the amount of entitlement. Regulation 5 indicates that the Corporation may at any time reassessed a claimants entitlement under these regulations and regulation 5(6) says that any reassessment shall be undertaken in the same manner as an initial assessment under these regulations. I find that the Decision of the Review Officer in this case has been a de facto reassessment of the appellant's entitlement without any reference to the provisions of the Home Help Regulations, and the decision would appear to rely heavily on the evidence of Mrs Singh and Mr Heta as it related to alleged fraudulent actions of the appellant in relation to Home Help payments. The provisions of section73(1) of the Act are quite clear and permit a cancellation of a benefit if the entitlement to it no longer exists. What has occurred in this case is that certain alleged fraudulent acts in the administering of her Home Help benefits have thereby disentitled her to Home Help. Such cannot be the case when there is no evidence that a properly constituted assessment of her needs has established that fact. The Court is not going to make a finding on whether proven fraudulent behaviour in relation to an entitlement is thereby a disqualifying feature, without proper legal argument being presented on that matter. Suffice as to say that this appeal does not require such a decision as I find it is clear on the face of it that the respondent has incorrectly applied the provisions of section 73 and at the time it so applied them it did not have proper grounds for coming to the decision that the appellant was no longer entitled to continue to receive Home Help. Those grounds can only be established when a proper reassessment has been carried out pursuant to the Home Help Regulations and it be the finding following that reassessment that a requirement for Home Help no longer exists. Nothing short of that procedure will do and any other purported reason is not a valid reason for cancellation. 7 Accordingly the decision to cancel the appellant's entitlement to Home Help is revoked. The appellant being successful I make an award of costs in the sum of $800.00. DATED at WELLINGTON this 3" day of March 1999 Death M J Beattie District Court Judge Elkerbout.doc(gm)