Kerr v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 3/97 HELD AT WELLINGTON 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 MATTHEW STEVEN KERR Appellant (Appeal No. DCA 182/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of November 1996 Counsel: Louise Elder for appellant Genevieve Hancock for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns modifications to a dwelling house under the Social Rehabilitation - Modifications to Residential Premises Regulations 1992. The appellant was injured in a motor vehicle accident on 15th April 1994 and is now paraplegic. He began living with his parents in Masterton when he was discharged from the Burwood Spinal Unit in Christchurch in August 1994. He wanted to achieve independence and did not at that time intend living at his parents home for a - 2. long time. Modifications to the home were required to equip it for the appellant's disability and application was made to the Corporation. The Corporation's claim activity sheet shows on 10th June 1994 a question raised "Housing modifications? Limitations on temporary abodes ... Will discuss with Lisa and print relevant sections of regulations." Then on 28th June 1994 "Housing modifications - O.T. Annette King has already assessed access into the house and bathroom. Queried need to have plans drawn up. Explained procedure of one quote if under 5 thousand - 3 needed if over this figure. Want to do minimal amount of alterations so as not to use too much of $40,000 entitlement. Plans at this stage: - Wooden ramp - Lifting of porch floor - Sliding door into bathroom Queried if Matthew shifts back to Christchurch and into a flat can more alterations take place. Yes within a 12 month period but again off total $40,000. Suggested looking at what accommodation available for people with disabilities through Housing Corp and university." On 6th July 1994 the occupational therapist recommended approval in principle for essential alterations to the house to allow Matthew independence in self-care. She suggested a wooden ramp for access to the house and modifications to the bathroom which involved re-hanging of a door, handrails at bath and toilet and a hand-held shower attachment over bath. The Corporation's case manager immediately wrote to the appellant notifying approval in principle and requesting him to obtain the necessary quotation. In answer to a question, the case manager wrote again on 21 July 1994 clarifying that the regulations permitted alterations to another house if required (this referred to the possibility that the appellant might reside for only a short time at his parents' home). The appellant was still in Burwood Spinal Unit and the letters were addressed to his parents' address. They replied to the Corporation by a letter of 28th July 1994 asking whether the $40,000 entitlement would be applied only in respect of alterations authorised within an initial 12 month period, whether in one house or two houses. The point under consideration was the 5 year limitation under s 26(5) of the Accident Rehabilitation and Compensation Insurance Act 1992 which states: (5) The Corporation may provide or meet the cost of modifications to residential premises or purchase of or modifications to motor vehicles in respect of any rehabilitation programme at intervals of - - 3 . (a) Not more frequently than 5 years; or (b) Less then 5 years only if the Corporation is satisfied that such purchase or modifications are necessary to enable the disabled person to obtain or maintain employment, and are expected to be cost-effective for the Corporation. The provision is repeated in the Social Rehabilitation - Residential Premises Regulations as follows: "6. Limitations relating to modifications - ..... (4) Subject to subclause (5) of this regulation and in accordance with section 26(5) of the Act, no approval for modifications to residential premises shall be given by the Corporation, or shall be required to be given by an exempt employer, where the Corporation or exempt employer (pursuant to these regulations), or the Accident Compensation Corporation (pursuant to the Accident Compensation Act 1982), has contributed towards the cost of modifications to those residential premises within 5 years of the date of the application for payment for modifications under these regulations. (5) The Corporation or exempt employer may give approval in respect of modifications to residential premises within 5 years of modifications in respect of which the Corporation or exempt employer or the Accident Compensation Corporation has contributed, where the Corporation or exempt employer is satisfied that the modifications are necessary to enable the claimant to obtain or maintain employment, and the modifications are expected to be cost-effective for the Corporation or exempt employer. 6) For the purposes of subclauses (4) and (5) of this regulation and section 26(5)(a) of the Act, each interval of 5 years shall commence on the day after the date on which the previous modifications were completed." 8. Additional modifications - Additional modifications not included in the initial approval may be approved on written application within 12 months of the initial approval so long as - (a) The modifications have been recommended by an assessor engaged under regulation 4(2) of these regulations; and (b) The need for additional modifications became apparent during the carrying out of the modifications initially approved or during the use by the claimant of the modified residential premises; and (c) The cost of such additional modifications and any prior modifications approved does not exceed the maximum amount payable under regulation 11 of these regulations; and - 4- (d) Such additional modifications are otherwise subject to the requirements contained in these regulations." On 9 August 1994 the occupational therapist made recommendations for the bathroom modifications, including the construction of another doorway between the appellant's bedroom and toilet. On 10th August 1994 the Corporation approved a grant of $3,230.88 for the ramp, bathroom and construction of the doorway access to toilet. In the same letter the case manager set out Regulation 6(4) emphasising that the limitation on further modifications within 5 years only applied to the residential premises that were first modified, and stated that the Corporation was allowed to pay for modifications to another premises within the 5 year period. The appellant's parents signed a form of consent for the work to be done and it was duly carried out. On the Corporation's file there is a detailed drawing of the ramp but no drawings in relation to the bathroom modifications. The appellant's mother certified the modifications complete in accordance with specifications and quotations to her satisfaction on 31st August 1994. The actual cost was $4,282.93 which was paid by the Corporation, with a further $121.50 for plans. The alterations were apparently completed before the appellant returned from Burwood Hospital to Masterton on 19 September 1994. A much more comprehensive occupational therapy report dated 24 April 1996 was furnished to the Corporation. The report commented on the need for improvement of the surface of the ramp to cope with frosty conditions, and noted that the structure of the ramp had never been covered in and a handrail was needed. Resulting from that report a duron polypropylene runner was funded at a cost of $781.76. In the same report the occupational therapist commented that the door-frame between bedroom and toilet was never painted, and that the tiled bath surround was deteriorating: "The fill between the tiles has begun cracking as a result of Matt constantly supporting himself on the wall, and by the pressure exerted in the wall by the bath-board, while he is transferring. Water has seeped through the breaks and is causing internal damage. In my opinion, these are not normal maintenance issues. Clearly the damage has been caused by the fact that the wall was not re- enforced to enable it to take Matt's weight. The alterations completed were appropriate for short term use. However, now that his exact needs are known, this area needs to be re-addressed." The occupational therapist recommended also the installation of a handrail to the ramp, proper finishing of the sides of the ramp, painting of the door-frame, reinforcing of the bathroom wall and relining with suitable materials, and a protective metal strip in a corner of the bathroom to prevent damage from wheelchair impact. The Corporation declined provision for those items under the 5 year limitation contained in the Act and the Regulations. The principal argument for the appellant is that the Corporation failed to adopt the correct procedure when the modifications were first carried out. Under reg 4 of the Residential Premises Regulations the Corporation is required to arrange for an assessment of the modifications necessary for the claimant to achieve independence in daily living. The assessment must be performed by an occupational therapist in consultation with the claimant or a person acting on the claimant's behalf where the claimant is not competent to participate. Under reg 5 the Corporation is required to give approval in principle to the recommended modifications in the assessment to the extent that it considers the modifications are necessary and cost-effective in order for the claimant to achieve independence in daily living. The appellant claims that there was no proper consultation and assessment before approval in principle. The appellant's argument does not strike at a merely technical omission. The appellant is tall and heavily built. Necessarily, alterations to a bathroom needed to be sufficient to withstand wear and tear having regard to the appellant's size and weight, his physical requirements and wheelchair difficulties. The assessment needed to take into account his functional limitations and his own aspirations to live independently. There was an underlying difficulty that the period of time until he could achieve independence from his parents' home was unknown. If he was to live there for a short time, the modifications need only have been designed for limited wear and tear. If he was to remain there for a long period of time, it appears, with the benefit of hindsight, that more attention needed to be paid to design. The appellant's parents were influenced by a wish to reserve as much of the total provision of $40,000 as might be possible for the appellant's ultimate use within the 5 year period if he moved to another house. The appellant was apparently not committed to addressing any decision to live for an extended period in his parents' house and consultation with him on that point was undoubtedly difficult. Counsel for the appellant submitted that it was the responsibility of the Corporation to address the difficulties and to obtain a sufficient report, taking account of the decisions that were necessary in relation to the appellant's rehabilitation and corresponding design factors for his parents' house. It is argued that the Corporation failed to pursue the correct process before giving approval in principle and proceeding to obtain quotations and authorised the work. The argument for the Corporation is that it has no ability or obligation to pay for additional modifications outside the first 12 month period to the same house, or for any repairs and maintenance to the original modifications. It relies to some extent on the appellant's mother's certificate of completion. In that respect I accept the appellant's submission that the significance of the certificate was not the equivalent of a professional opinion; it was only confirmation by the appellant's mother that the work that was quoted for had apparently been carried out. The Corporation submitted that the further modifications would have to be brought within reg 8 relating to "additional modifications", but could only be so regarded if the application was made in writing within 12 months of the initial approval, which - 6- it was not. That regulation is specifically addressed to the need for additional modifications which become apparent during the carrying out of the initial modifications or during the use of the modified premises by the claimant. The purpose of the regulation is obvious enough. It appears intended to cover this type of situation, and if the defect had been discovered during the first 12 months, application could have been made within the terms of Regulation 8. The Corporation pointed to the appellant's father's evidence at the review hearing when he said: "... We were quite happy with the work that had been done. It's quite adequate. There is nothing wrong with it, it needs tidying up ..." Clearly, there is no avenue for provision of the kind described in reg 8. The appellant is compelled to rely on the argument that the Corporation failed to adopt the regulatory procedures and that the modifications should be addressed from the beginning. No doubt, if they were, the amount already expended could be regarded as provision by the Corporation, but inevitably such an approach gives rise to potential difficulties in relation to time periods and the total maximum amount that the Corporation may provide within those periods. Those considerations should not, however, prevent the appellant obtaining the provision and service that he is entitled to under the Act and Regulations. This argument was not advanced before the review officer. I find that on balance the material before the Court indicates that the required process under the regulations was not carried out. A number of circumstances contributed to the failure and it is not a case where the occupational therapist or Corporation's officers heedlessly created the problem that arose. It has been suggested by the respondent that the defects should properly be addressed by some form of claim against the occupational therapist or the builder. It is possible that there may be ground for such a claim, but in relation to the Corporation's responsibilities there is also good reason to conclude that the requirements of the Residential Premises Regulations were not met, so that, if the appellant's argument is accepted, it should follow that the provision which has been made, was not made strictly in accordance with the regulations, and the appellant should not be barred from proper provision under the same regulations. The respondent's argument was that there was no breach. The Court has not heard full argument about the consequences of a procedural failure. It might be argued that the Corporation complied substantially with the requirements of the Regulations and the fault lay with the occupational therapist. On the other hand, the Corporation is vested with control over the processes of assessment and is equipped with knowledge of the precise requirements of the Regulations. The appellant's submission that the consequences must be that the appellant should still have access to the available provision for building modifications appears a reasonable submission, and it is accepted. In other words, the Corporation failed to carry out its statutory duty and it must now do so. - 7- For those reasons the appeal is allowed. The respondent will be required to carry out the procedures for an initial application under the regulations. No determination is made about the effect of money already spent. Hopefully that can be resolved in a common-sense manner, but if there is an ultimate question about whether the limitation of $40,000 is exceeded then there will of course have to be a new decision by the Corporation, amenable to review and appeal. The appellant will have costs of $800. DATED at WELLINGTON this 25. d day of JANUARY. 1997 D A Ongley District Court Judge