Free v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 144 /98 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 MARGARET FREE DCA 191/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of December 1997 APPEARANCES: Mr T Pritchard for appellant Mr A D Barnett for respondent DECISION OF JUDGE M J BEATTIE There are two issues for determination in this appeal: 2 i. Whether the Corporation's decision of 18th December 1996 determining the appellant's level of entitlement to attendant care was correct; and ii. Whether the Corporation's decision of 18th February 1997 determining the appellant's level of entitlement to home help was correct. BACKGROUND On the Ist December 1996 the appellant sustained multiple injuries in a motor vehicle accident. On the 16th December 1996 the appellant's needs were assessed to establish her entitlement to attendant care, home help and child care. In a letter to the appellant dated 18th December 1996 the Corporation stated: "I refer to your recent application for attendant care assistance following your injury on 1/12/96. An assessment of your attendant care needs has been completed by Fiona Vaughan in accordance with the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Attendant Care) Regulations 1993. A copy of this assessment is enclosed for your information. You are eligible to receive up to $105 per week to have attendant care provided to you. This amount will be paid to you by direct credit into your bank account each week. Your entitlement starts on 13/12/96 and will be reassessed on 30/1/97." At the same time the Corporation advised the appellant that her entitlement to home help was six and a half hours per week from 13th December 1996 to 30th January 1997. 3 The appellant's home help and attendant care requirements were reassessed on 31st January 1997. The recommendation of the assessor was that 15 hours of home help per week and $105 per week for attendant care was required. The Corporation then advised the appellant that the 31st January assessment appeared to be excessive given the six and a half hours for home help which had previously been assessed. The appellant was advised that the Corporation intended to reassess her entitlement. On the 11th February 1997 the appellant was reassessed for home help, attendant care and child care. In Fiona Vaughan's assessment report to the Corporation dated 12th February 1997 she states: "Margaret lives with her husband and two children in their own home. Her husband is at present unemployed, however is under a great deal of stress and Margaret feels that he is close to breaking point. He has assisted with a lot of the household chores and supervision of the children however as he does not have a good relationship with the children, he is struggling with this. Margaret and her husband have been going to marriage counselling to try and sort things out. I have advised Margaret that I expect her husband to help significantly with the household chores. However, due to the amount of family stress and marriage under strain at present, a comprehensive level of assistance continues to be required." The results of the reassessment were advised to the appellant in a letter dated 18th February 1997. That letter stated inter alia: "The duration of home help is for 8 weeks for the period 11 February 1997 until 11 April 1997. ACC will reimburse you the costs of this assistance with these tasks to a maximum of $10.00 per hour for 71/2 hours per week. The total amount payable will be $75.00 per week. 4 . .. The child care entitlement is payable to a maximum of $140.00 per week and this will cease on 25 March 1997. According to the latest assessment by Fiona Vaughan dated 12 February 1997 you have no further entitlement to attendant care payments." On the 12th of March 1997 the appellant filed an application for review of the 18 December 1996 assessment concerning attendant care and then on the 3rd April 1997 she filed an application for review of the Corporation's 18 February decision concerning home help. RELEVANT STATUTORY PROVISIONS The long title to the Accident Rehabilitation and Compensation Insurance Act 1992 states: "An Act to establish an insurance based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who have suffered personal injury." Section 18 of the Act sets out that every person who has cover under the Act has the primary responsibility for his or her own rehabilitation to the extent possible. It provides: "Every person who has suffered personal injury for which the person has cover under this Act is responsible for his or her own rehabilitation to the extent possible having regard to the person's condition and is entitled to the extent provided by this Act to rehabilitation necessary to enable the person to lead as normal a life as possible, having regard to the consequences of his or her personal injury." 5 Section 26 of the Act sets out the object of social rehabilitation as follows: "The objective of social rehabilitation is to restore the independence of a person to the extent that the person's independence has been lost by personal injury covered by this Act." The Accident Rehabilitation and Compensation Insurance Amendment (No 2) Act 1996 changed the purpose and nature of assessment for the provisions of or payment for social rehabilitation. It inserted section 26(A) into the Act which provides: "(1) Subject to subsection (2) of this section, the Corporation may make any provision or payment in respect of social rehabilitation that is required or permitted under this Act and that is consistent with the objectives set out in section 26(1) of this Act. (2) The Corporation's power, under subsection (1) of this section, to provide or pay for social rehabilitation - (a) Is exercisable notwithstanding anything in the regulations made under this Act, subject to any direction of a type referred to in section 159(2) of this Act that is the time being in force ..." Section 159 is also relevant. It states: "Corporation to comply with Government policy - (1) In the performance and exercise of its functions, duties and powers, the Corporation shall comply with any directions relating to the policy of the 6 Government that are given by the Minister to the Corporation by notice in writing and that are for the time being in force. (2) Without limiting subsection (1) of this section, the Minister may from time to time give the Corporation a direction under that subsection that any item referred to in section 26(2) of this Act shall be provided only under regulations made under this Act, and not otherwise." On the 2nd September 1996 the Minister for the Act issued a policy direction the effect of which was that the Corporation could provide social rehabilitation in circumstances and within limits both above and below those which the regulations permitted. Counsel for the respondent advised that the Corporation activated discretionary home help social rehabilitation assistance under the above policy from 1st December 1996. The effect of this was that the Corporation would provide home help rehabilitation at costs and in circumstances outside the current regulations from Ist December 1996 and that services and supports will be based on an assessment of actual need. The Act's Social Rehabilitation Attendant Care Regulations 1993 were not similarly widened at the time which is relevant for the purposes of this appeal and therefore the question of the appellant's entitlement to attendant care calls to be considered under regulation 4 of those regulations which provide: 'Assessment of entitlement to payment for attendant care - (1) Within 14 days of receipt of - (a) A written application from the claimant for payment for attendant care; 7 (b) A discharge report, where appropriate - or within such long period as may be agreed to by the claimant, the Corporation or exempt employer shall arrange for an assessment of attendant care entitlement to be commenced. (2) A registered health professional engaged by the Corporation or exempt employer for the purpose shall, in consultation with the claimant (or a person acting on behalf of the claimant where the claimant is not competent to participate), complete an assessment in accordance with the First Schedule to these regulations. (3) The numerical ratings applicable to the claimant on the care activity scale specified in the First Schedule to these regulations shall be totalled for each care activity module. The thirteen highest module totals shall be added together to obtain a total care activity rating." SUBMISSIONS Mr Pritchard for the appellant submitted that the Corporation's home help assessment of 18th February 1997 was fundamentally flawed in that the assessor had regard to "familial responsibility" in the sense that the appellant's husband could supply and provide the appellant with support, a factor which counsel contends is inconsistent with the purpose and object of the legislative amendment and sections 26 and 26A of the Act. In the alternative counsel submitted that if familial responsibility was a factor to which the Corporation could have regard then the assessor failed to make any or sufficient enquiry as to the appellant's husband's availability to assist with household tasks or wrongly assessed the appellant's husband as being unemployed and therefore available to assist when that was not the case. Counsel further submitted that the assessment was inadequate and not conducted on a needs based principle. 8 Insofar as the attendant care entitlement was concerned, counsel submitted that the assessment was wrong as a matter of fact because the assessor did not make a full enquiry of all the questions that were required to be considered. Counsel for the respondent submitted that onus of proof was on the appellant and that it had not been discharged, rather the Corporation's decision regarding home help should not be interfered with for the following reasons: (a) The long title of the Act sets out that the purpose of the Act is to rehabilitate and compensate in an equitable and financially affordable manner. (b) Section 18 of the Act sets out that every person covered by the Act is responsible for his/ her own rehabilitation. (c) Section 26A of the Act allows the Corporation to make payments for social rehabilitation (including home help) notwithstanding any regulations made under the Act. (d) Section 159 of the Act allows the Minister to give the Corporation a discretion. (e) The Minister issued a policy direction on 2 September 1996 and the assessment of entitlement to home help was discretionary from 1 December 1996. (f) Assessment of entitlement to home help is undertaken on a "needs based" principle. 9 (g) When there was a discretion as to the entitlement of claimants to home help under the 1982 Act the Appeal Authority has held that familial responsibility / family circumstances can be considered. (h) It is also appropriate to consider familial responsibility under the current scheme because this is considered with the "needs based" principle. (i) The Corporation had regard to the ability of the appellant's husband to assist around the home. () The Corporation was aware of the stress the appellant's family was under as a result of the appellant's accident (refer Vaughan report of 12 February 1997). (k) The Corporation's exercise of its discretion was based on the independent report of Fiona Vaughan. (1) There is no suggestion that the Corporation has exercised its discretion in bad faith. (m) It is not unreasonable to expect the appellant's husband to assist with household chores regardless of whether he is unemployed or involved with his own business. (n) 71/2 weeks of home help was reasonable in the circumstances especially considering the improvement of the appellant's medical condition. Insofar as attendant care is concerned counsel submits that the assessor was impartial and independent in her assessment, the appellant's husband was present at the time and therefore had the opportunity of becoming involved in the assessment process. Further that the assessment was made in good faith. 10 Counsel further submitted that in this appeal the Court has been called upon to make a judgment call on the decisions of an occupational therapist. He submits that the Court is not an appropriate forum in its appellate jurisdiction to interfere with these types of decisions. DECISION The issues for determination in this appeal are in reality issues which are not so much issues of principle or determinations of law, but rather calling on this Court to assess a value judgment made by persons who are specifically trained to make those judgments as part of the administration of the Act. This is not a case where the Corporation is saying that the appellant has no entitlement to the benefits she sought. Those particular benefits are assessed having regard to the criteria contained in the regulations, and in some cases the policy directives of the Corporation. They are not matters which can come to this Court on appeal for this Court to say the assessment made, that is, the number of dollars per week or the number of hours per week of care or help has been incorrectly assessed because insufficient regard as been had to certain factors or conversely, too much weight has been placed on others. This Court is not going to embark upon a scrutiny of the minutiae of an assessment. This Court can and will look at such matters when questions of law and principle are involved, such as entitlement, but where quantum involves a value judgment rather than a fixed certainty, this Court ought not to interfere with the assessments of trained professionals. 11 Accordingly then for these reasons this Court does not propose to consider any further the issue of whether or not the appellant's entitlement to attendant care was or was not sufficient. Insofar as the issue relating to the appellant's entitlement to home help is concerned, I find that counsel for the appellant has raised a question of principle which is appropriate for this Court to consider in the context of an appeal under the appeal provisions of the Act. That principle is whether, when assessing a claimant's entitlement to home help, regard should be had for what has been described as the familial responsibility, in this case of the appellant's husband. Counsel for the appellant submitted that there is no mention of familial responsibility in the Act or Regulations and the entitlement of a claimant is on a needs based system, that is one looks to the need of the claimant when making the assessment. It is contended that in making allowance for the appellant's husband to be the provider of a number of services and duties, it is in effect asking him to be the insurer, instead of the Corporation being so in fulfilment of its statutory obligation. It is a fact that when the home help was reassessed in February, being the third assessment, the appellant's husband was assessed as being available to do a considerable number of tasks which had previously been assessed as being required to be done by home help. Hence the reason for the reduction in the assessment. It is contended by the appellant that the division of responsibility between the Corporation and family is inequitable. Counsel submits that the objectives of social rehabilitation stated in section 26 would not be promoted if a person's independence were to be restricted by requiring that person to be reliant on family. He contends that the notion of independence means not having to be reliant on family members. 12 In the schedule to the Home Help Regulations 1992 the enquiry is solely to determine what of certain specified tasks the claimant did in the home before injury and which of those tasks could that person not do now as a result of the injury. Each particular task was given a rating and only required a "yes" or "no" answer as to whether the claimant could do the task post injury. There is no mention in the regulation nor in the questionnaire as to whether any other person can take over the task. The only issue is whether the injured person was predominantly responsible for the task before the personal injury occurred. The Corporation has sought to depart from what might in some circumstances be regarded as the rigidity of the various rehabilitation regulations and this was the whole intent of the passing of section 26A and the policy direction that was issued under it. Whilst the policy direction may have permitted the development of a valuation methodology in respect of any item of social rehabilitation, I find that it cannot whittle down or diminish the entitlement which the regulations would otherwise give to a claimant. In the particular circumstances of the home help methodology the new question asked which is not present in the regulations is "Is there another person who can help with the task?" I have not been referred to any principle of law which would enable a statutory entitlement to be removed by the implementing of a discretionary regime created by a policy directive which was at odds with that statutory entitlement. I find that such a concept would be contrary to what was intended to be available to claimants when section 26A was enacted. That section was meant to enable an amelioration of rigidity and to give the Corporation a discretion where, under the 13 regulations, no discretion may have been permitted. It does not permit the Corporation to lay down criteria which have the effect of diminishing entitlement. Accordingly then I find that the assessment made, and the decision made consequent upon it by the Corporation of the 18th of February 1997 to diminish the amount of home help to which the appellant was entitled because of the calculation in the assessment that the appellant's husband was able to do a substantial number of the tasks, was not a proper exercise of the Corporation's discretion. The Corporation was not entitled to take account of the fact of the appellant's husband being available to carry out those tasks, when those tasks had before the accident been carried out by the appellant herself. She was entitled to have them put into the calculation for the assessment of her home care entitlement, not to have them omitted because it was perceived that her husband could do them. Accordingly then the Corporation's decision was wrong and insofar as the home help issue is concerned the appeal is successful and the appellant is entitled to costs which are fixed at $500. DATED at WELLINGTON this 7 day of July 1998 M J Beattie District Court Judge Free.doc KD