Larkin v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2014] NZACC 311 ACR 222/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN KURTIS LARKIN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 30 September 2014 Appearances: C Hollingsworth for the Appellant P McBride for the Respondent Judgment: 17 November 2014 RESERVED JUDGMENT OF JUDGE NICOLA MATHERS [1] On 29 July 2011 ACC reduced Mr Larkin's hours of attendant care. Mr Larkin applied for a review of that decision. On 5 April 2012 the Reviewer upheld ACC's decision. Mr Larkin now appeals that decision. [2] Ms Hollingsworth, for Mr Larkin, submits: 1. Mr Larkin's attendant care entitlement does not adequately reflect the amount and level of care required due to the severe nature of his injuries, and 2. The ACC assessor failed to take relevant considerations into account, and took into account irrelevant considerations. 3. The decision should be quashed and the hours of attendant care as assessed by Ms Smith should be imposed. Background [3] Mr Larkin was born on 4 January 1992. A foetal-maternal haemorrhage occurred during birth causing hypoxia. Mr Larkin suffered significant brain injury causing cerebral palsy, quadriplegic and epilepsy. He also has loss of vision from scoliosis. He has seizures every day which can last up to two hours. He is totally dependant for all his care. [4] Mr Larkin's mother, Ms Hoare, applied to ACC for cover for treatment injury. As a result of an appeal to the District Court Judge Beattie found there had been medical misadventure and ACC has since provided support. [5] Mr Larkin is now 22. He lives with his mother who is his primary caregiver, and he stays with his father every second weekend. He is in an IDEA home every other weekend. [6] Dr Taylor carried out an impairment assessment report on 8 April 2011. He assessed Mr Larkin as having 100% impairment. That report was peer reviewed by Dr Kanji and he approved the same impairment percentage. [7] A support needs assessment was carried out by Ms Andrews, a physiotherapist, in May 2011. She assessed Kurtis as having a Functional Independence Measure ("FIM") of 18 and a Functional Assessment Measure ("FAM") of 15. This is the lowest possible score and indicates total care is required for all aspects of life. [8] Ms Andrews made various recommendations and as a result ACC issued a decision on 29 July 2011 approving the following home and community support hours for Mr Larkin: . Attendant care level 1 school term = 44 hours . Attendant care level 1 school holidays = 67.75 hours . Attendant care level 2 school term = 5.75 hours . Home help = 6 hours . Set up services fee = 1 hour Different hours were allocated for when Mr Larkin stays with his father every second weekend as follows: . Attendant care level 1 school term = 13.5 hours . Attendant care level 2 school term = 1.25 hours . Home help = 1.25 hours [9] Mr Larkin lodged a review of that decision and prior to the Review Hearing an independent occupational therapist's report was obtained from Ms Smith. In her report of 27 March 2012 she recommended 24 hour care for Mr Larkin due to the severity of his injury condition (totalling 172 hours per week). She was of the view that the following should be the attendant care hours: . Attendant care level 1.= 101.23 hours per week . Attendant care level 2 = 13.44 hours per week . Indirect supervision (night or day) = 43.33 hours per week . Natural family support = 14 hours weekly . Home help - 9 hours per week . School care hours = 30 hours per week Submissions [10] In the original written submissions filed for the appeal hearing there was some difference between counsel as to the approach that should be taken on appeal. Ms Hollingsworth, counsel for Mr Larkin, accepts that in terms of Clifford J's decision in Wildbore v ACC, 22/1 1/07, HC Wellington, CIV-2007-485-496, the issue is whether the respondent properly exercised its discretion. He said: [23] I do not accept that the provisions of s 145 allow the District Court the same powers on appeal as the Reviewer. The roles of the Reviewer and the Court are distinct. The function of the Reviewer is to review the4 decision of ACC in its entirety, by setting aside ACC's decision and making the decision afresh. It is given the statutory power to examine anew all the relevant information, including any new information that might be produced, and to come to its own decision. [24] The District Court, on the other hand, is exercising its function as an appellate Court. It is to consider the appeal by way of rehearing, according to the provisions of the District Courts Act. It is well established that on such an appeal the Court is to give due weight to the opinion of the maker of the decision under appeal. [1 1] She also accepts that the appeal is a rehearing and the issue for me is whether the respondent properly exercised its discretion in accordance with May v May (1982) 1 NZFLR 165 and Kacem v Bashir [2010] NZSC 112. The latter decision approved the four principles stated in May in relation to what the appellant must identify in respect of a discretionary decision, namely: 1. Error of law or principle; 2. Taking account of the relevant considerations; 3. Failing to take account of a relevant consideration; 4. The decision is plainly wrong. [12] The Reviewer considered the relevant law and in particular clause 14 of the first schedule of the Act which provides for attendant care. He considered the matters which ACC must have regard to in making that determination and considered the following: Any rehabilitation outcome that would be achieved. The nature and extent of the personal injury. The extent to which attendant care is necessary to enable a claimant to be in employment or attend education. (d) The extent to which attendant care is required to give family members a break from time to time. (e) The need to avoid substantial disruption to the employment or other activities of household family members. [13] He referred to a number of decisions and in particular Rouse v ACC (272/98) and llich v ACC (220/99) where the Courts have said that it is only appropriate to interfere with the exercise of a discretionary provision where it is shown that the discretion has been exercised on a wrong principle, or there has been a miscarriage of justice. He also referred to Greally v ACC (110/00) where it was held that the assistance is meant to be supplementary to the efforts of the claimant and family and is not a total type of assistance. [14] He also referred to Free v ACC (144/98) where the Corporation granted the appellant attendant care and home help as the result of an assessment, and a Court found that it would not second guess a professional assessor on minutiae of assessment and that it would only review questions of law and principle. [15] The Reviewer heard evidence from Mr Larkin's mother and in particular in relation to the time that she spent with her son at night, and that she required 24 hour full time care. The Reviewer noted in particular that he was not in a position to be able to assess any change in Mr Larkin's condition. [16] The Reviewer noted that Mrs Hoare is a very dedicated and devoted mother to Kurtis and large amounts of time and energy are put into making sure that he is safe and well cared for. He agreed with Ms Hollingsworth's submission that, pursuant to the High Court decision of Accident Rehabilitation & Compensation Insurance Corporation v Campbell [1996] NZAR 278, people who are at the top of the pyramid of ACC claimants (which Mr Larkin is) should have considerable resources directed to them. [17] The Reviewer went on and accepted the submission from ACC that there is: ... some reasonable expectation that family members can assist. ... Curtis does not need to have a carer with him at all times, just to have someone available. [18] He also found from the two reports and Mrs Hoare's evidence that: There are times when Curtis can be left without direct supervision. There is also night time when Curtis is asleep, although he requires care if he has a seizure. The rest of the time he does not require care. Mrs Hoare has a monitor to alert her when a seizure occurs. While she must remain diligent, there is no actual care required at that time. On this basis I find that funding of 24 hour care is not required. [19] The Reviewer refers to the FIM and FAM factors being essentially the same in both of the reports but where they differ is that Ms Smith increases the hours up to a full 24 hours per day with indirect care and supervision, however the Reviewer found from the evidence that this was not required. He concluded: I find that Ms Andrews has taken into account all relevant factors in her assessment. I find there is no evidence that discretion has been exercised on a wrong principle or that there has been a miscarriage of justice. On this basis I find that ACC's decision is correct [20] For Mr Larkin, Ms Hollingsworth submits that Mr Larkin falls within the small scope of injured claimants requiring constant personal attention as referred to in Campbell. She refers to Dr Taylor's report and Dr Kanji's peer review, concluding that Mr Larkin was assessed as 100% impaired. She refers to Ms Andrews' note under the heading "payment to family members" that "Curtis requires full support. (direct and indirect supervision) at all times". Ms Hollingsworth submits that although Ms Andrews recognised that Mr Larkin falls within the scope of claimants at the top of the pyramid identified in Campbell requiring constant personal attention, she failed to translate that finding into the recommendation of 24 hour care. [21] On the other hand, Ms Smith noted that Mr Larkin: ... requires 24 hour care - combination of level 1 and level 2 attendant care and natural family support throughout a 24 hour period. Ms Smith noted that: Curtis has no specific means of calling for help so requires a caregiver to anticipate need and/or interpret no-verbal cues. [22] At the Review Hearing Mrs Hoare gave evidence about the burden placed upon her particularly at night time when she has to check breathing every 30 minutes and she has to remain on call at all times in the event of a major seizure whenever that may occur. [23] Ms Hollingsworth also notes Ms Andrews' recommendation that ACC approved 24 hour care when Kurtis Larkin is cared for by non family members at a respite care facility. She submits that it is: ... an affront to common sense to offer 24 hour care when other carers are looking after Curtis but not when his regular carers are providing the care, purely on the basis that they are household family members and should be expected to bear the burden of caring for Curtis. As Ms Andrews noted: Curtis' needs do not change, they remain the same regardless of who provides the care. [24] She submits further that Ms Andrews has attributed too many hours to family responsibility and it is unreasonable to place such a high burden of caring for Mr Larkin on his parents. She refers to Ms Smith's opinion that it was reasonable to expect that two hours of care per day would be considered natural family support. She submits that Ms Smith's assessment properly assesses Mr Larkin's injury related needs, the care he requires, and what care a household family member might reasonably provide in the circumstances of this case. [25] In particular, Ms Hollingsworth is critical of the fact that the Assessor has not properly taken into account clauses 14(d), (e), and (f) of the first schedule and the ACC in its decision when it allocated the hours of attendant care entitlements. [26] In conclusion she submits: This is a "top of the pyramid" case where it is unreasonable to expect family members to provide a significant amount of Curtis' care. The provision of care to Curtis, as demanded by the severity of his injuries, far exceeds what could "reasonably be expected to be provided as normal parental responsibility. The attendant care entitlements provided by ACC in the decision letter of 29 July 2011 do not adequately reflect Curtis' needs as assessed by Ms Andrews. severity of his injuries and his impairment is so great that he requires 24 hour care and attendant care and home help should be provided in accordance with Ms Smith's assessment which properly assesses Curtis' needs and the reasonable expectation of household family members. [27] Mr McBride for ACC submits that: 1. ACC's decision of 29 July 2011 was a valid and proper exercise of its discretion 2. There was and is no valid basis for disturbing that decision. 3. ACC's decision was properly upheld by the Reviewer. [28] He refers to the statutory scheme and refers to s 81 of the Act which provides for the Corporation's liability to provide key aspects of social rehabilitation. Section 84 provides for the assessment and reassessment of need for social rehabilitation. Once the assessment is undertaken as it was in this case by Ms Andrews and the needs are identified, ACC then exercises a broad discretion in respect of the funding of those needs and clause 14 in relation to attendant care, and clause 17 in relation to home help set out the matters that the Corporation must have regard to. [29] Mr McBride submits that subjective disagreement cannot displace the assessment or ACC's decision and refers me to the decision of Smith v ACC [2012] NZACC where Judge Ongley said: The Court is not equipped to make its own assessment based on evidence of needs and estimates. That is done by an assessor under relevant legislative provisions. It is difficult for a claimant to accept that attendant care and home help depends on the opinion of one assessor, employed by the Corporation and not completely independent in the sense that the assessor is likely to rely on the Corporation for work. However there is no more rigorous system available and the process adopted by the Corporation complies with the legislation. [30] Mr McBride submits that in relation to the areas in issue, Ms Andrews took into account all the factors that she was required to and she recognised that: Curtis' needs are high and complex, they are frequent and intermittent and they are long term. and Curtis requires full support (direct cares and supervision) at all times. Penny is able to work only during the times that Curtis is at school [31] He also is critical of Ms Hollingsworth reference to ARCIC v Campbell, noting that decision was a case under the 1982 Act which was a markedly different statutory regime. Whereas under the 2001 Act, the process is one of a statutory assessment and not merely value judgment. [32] On behalf of ACC, Mr McBride acknowledges that Mr Larkin has suffered significant injury and that his needs are substantial but that does not mean that there is a need for 24 hour a day care. [33] Mr McBride refers to the fact that ACC considered the night time care issue and decided to make payment of substantial night time care while recognising that not all time overnight was spent supervising Mr Larkin, but some was spent on an uninterrupted sleeping basis. [34] In summary, he submits that ACC exercised its discretion based on Ms Andrews' assessment and information contained there and elsewhere. ACC decided within its discretion how much of the assessed needs it would fund and it did so taking into account all of the relevant criteria. That occurred only after extensive discussion with Mr Larkin's family. The recommendation in the support needs assessment of 30 May 2011 are a fair and reasonable reflection of time required to assist Mr Larkin with his injury related needs and with particular reference to clause 14 factors. No valid basis has been identified for disturbing the exercise by ACC of one part of its discretion in relation to attendant care in the particular circumstances here, and there is nothing in Ms Smith's opinion or in the appellant's argument to indicate any error or principle or other flaw in the exercise of ACC's discretion such as to warrant disturbing that decision. [35] Mr McBride raised the question as to how Ms Smith had been instructed. Ms Hollingsworth has provided the letter of instructions to Ms Smith and asked for her opinion on the following three issues: 1. Can you please carry out an assessment and provide your opinion on the hours of attendant care that Kurtis needs? Please also comment on the level of care that consider is appropriate (eg level 1 or Level 2 direct care, supervision). Give supporting reasons for your opinion. 2. Do you consider that ACC has provided an appropriate level of care in relation to the nature and extent of his personal injury for the period from 16 May 201 1 onwards? Please provide the reasons for your opinion. 3. ACC can have regard to the extent to which household or family members might reasonably be expected to provide attendant care for an injured person. In Kurtis' case, to what extent can the care provided reasonably be considered familial responsibility? [36] I am satisfied that the letter of instructions to Ms Smith was perfectly acceptable in all the circumstances. It appears that no further advice was received and therefore ACC proceeded with the assessment process. Discussion and Analysis [37] I accept as a starting point that ACC, at the assessment stage, exercises a discretion when it decides whether and to what extent it will fund attendant care and home help under clauses 14 and 17 of Schedule 1 of the Act. [38] Then there is a review by ACC of its own decision. The Reviewer took the view that he was constrained to deal with the review by limiting his powers to that of considering the proper exercise of a discretion. Putting aside that issue for a moment there is little doubt that I am constrained, on an appeal such as this, to the principles enunciated in the Supreme Court decision of Kacem v Bashir, approving principles set out in May v May, although it may be argued that as the District Court sits on appeal as a specialist body, that it should be able to exercise its own discretion. [39] However I consider I am presently bound by the High Court decision of Wildbore v ACC, a decision of Clifford J, where it was held that a Reviewer could consider the assessor's decision afresh whereas the District Court was limited to exercising its function as an appellate court. (40] In any event Ms Hollingsworth for the appellant concedes, quite properly in my view, that I must consider whether ACC properly exercised its discretion in terms of May v May. [41] That being my view, I am limited to whether there is an error of law or principle, whether irrelevant matters were taken into account or whether relevant considerations were not taken into account. Finally, I must decide whether the decision was plainly wrong. [42] For my part, I consider that a Reviewer is not, in a case such as this, constrained merely to review a discretionary decision. Both the assessment and review are undertaken under the auspices of ACC and it would not seem sensible from a common sense point of view that, in an important case such as this, a Reviewer should be so constrained. I note, of course, that the Reviewer thought he was so constrained, so I consider there was a wrong approach and therefore reviewable by me. However, even if I am wrong in this regard and for the reasons that follow, I consider that there are other factors that allow me to resolve this appeal. [43] As the Reviewer pointed out, the difference between the ACC assessor, Ms Andrews, and the independent view of Ms Smith "is that Ms Smith then increases the hours to a full 24 hours per day with indirect care and supervision". The Reviewer decided that such care was not required. [44] In essence the view of the assessor and the Reviewer was that as expressed by the Reviewer: I agree with that submission. From Ms Andrews' report, Ms Smith's report and Mrs Hall's evidence it is clear there are times when Kurtis can be left without direct supervision. There is also night time when Kurtis is asleep. Although he requires care if he has a seizure, the rest of the time he does not require care. Mrs Hoare has a monitor to alert her when a seizure occurs. While she must remain diligent, there is no actual care required at that time. On this basis I find that funding of 24 hour care is not required. [45] The above view was in spite of acceptance by everyone that Kurtis "requires 24 hour care". The Reviewer referred to ACC's submission saying: However, it submits that there is some reasonable expectation that family members can assist. It also submits that Kurtis does not need to have a carer with him at all times, just to have someone available. [46] Having read very carefully all the various reports I consider that Ms Hoare's care and devotion, while trying to run a household and work, is above and beyond the call of duty. She gets very little sleep and has an intensive regime to adhere to, plus dealing with Kurtis's very frequent fits. [47] ACC "must" have regard to a number of factors set out in clause 14 of the 1st Schedule including (d), being the "extent to which household family members or other family members might reasonably be expected to provide attendant care". When Kurtis is cared for by a non -family member, ACC accepts that 24 hour care is necessary. [48] What is startling to me is a lack of any proper consideration of Kurtis' age by the Reviewer, where it comes to the discretionary decision making of clause 14 (d). The test is "might reasonably be expected". I consider such reasonable expectation cannot ignore the changing age of someone like Kurtis, now over 21, but 19 during the so-called "snapshot" and thus the changing expectation of parental care. [49] Mrs Hoare, and indeed most parents, can reasonably expect their children, disabled or not, to leave the nest, or at least go off to an apprenticeship or university or on an overseas trip by the time of Kurtis' age. But Mrs Hoare is in effect sentenced to a lifetime of care. So to the extent that his age has not been properly considered, if at all, then I am of the view there has been a failure to take into account relevant matters that "must" be considered when deciding upon attendant parental care. [50] In my view there has been an error of law, or the ACC decision is plainly wrong. It accepts Kurtis is at the top of the pyramid for claimants, and accepts he needs 24 hour care. Kurtis is now a grown man and no longer, say five or six, where perhaps it might reasonably be expected that there be a greater parental involvement. [51] In addition I consider that there has been insufficient consideration of clause 14(f) in relation to the disruption to the employment or other activities of household family members. [52] My decision is that the decision of the Reviewer is overturned, with the effect that the appeal is allowed, and Kurtis is entitled to funding for 24 hour care. [53] Mr Larken is entitled to costs and disbursements, which I hope counsel will be able to resolve between them. If not, then I will receive memoranda. Nicola Mathers District Court Judge