PERRY V MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2004-485-1759

PERRY V MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2004-485-1759 3 November 2005IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2004-485-1759IN THE MATTER OF an appeal by way of case stated from the determination of the Social Security Appeal Authority under section 12Q of the Social Security Act 1964 BETWEEN NADYA AND STEVEN PERRY Appellants AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 12 September 2005 Appearances: M Andrews for appellants H L Dempster and L M Fong for respondent Judgment: 3 November 2005 at 4.30 p.m.JUDGMENT OF MACKENZIE J[1] This is an appeal by way of case stated against a decision of the Social Security Appeal Authority given on 16 September 2003. The appeal relates to an application by the appellants for a benefit to meet the cost of providing a van, modified to meet Mrs Perry's needs. The appeal to this Court has a somewhat unfortunate history. An appeal to this Court lies only by way of case stated, on a question of law. A case was stated, and set down for hearing. It came before Wild J on 2 February 2005. At that hearing, counsel for the respondent submitted that the appeal did not state a question of law. Wild J, in a Minute issued on 3 February, dealt with that submission. He ordered that the case be sent back to the Authority for amendment. An amended case stated dated 1 July 2005 was stated, and the appeal was heard by me on 12 September 2005.[2] Mrs Perry suffers from multiple sclerosis and Mr Perry is her primary caregiver. They currently receive invalid's benefit, disability allowance and special benefit. Mrs Perry's condition is such that she spends virtually all of her time in a wheelchair or in bed. Her vision is limited, her speech slow and weak, her hands shake involuntarily, she can do nothing for herself and she requires assistance with personal care. Mr and Mrs Perry have a young daughter. They are actively involved in their church and participate as much as they are able in their daughter's school life. In August 2002, Mrs Perry began using a new wheelchair which had been prescribed on medical grounds. That wheelchair has advantages but also presented difficulties in the process to transfer Mrs Perry from her wheelchair into a vehicle. They approached the Ministry seeking assistance with transport. The Ministry, by letter dated 18 November 2002, advised that it was prepared to consider including hire purchase payments for a van and modifications in a special benefit, with a limit of $21,000 excluding GST. Mr and Mrs Perry did not take up that offer, and lodged an appeal with the Authority. [3] In its decision, delivered on 16 September 2003, the Authority found that some cost to meet Mrs Perry's transport needs was necessary but that that cost must be related to her essential and not reasonably avoidable transport requirements. The Authority found:The vehicle purchased needs to be a vehicle which will be adequate for transporting Mrs Perry to various medical appointments, support groups and shopping in the Mosgiel and Dunedin area. The Authority did not accept that the cost of a hoist for the front of the vehicle purchased was "essential and not reasonably avoidable" in respect of a permanent transport solution for the appellants.[4] As to the cost of such a vehicle, the Authority found:[39] On the basis of the information available it appeared that the appellants could purchase a Hi Ace van with existing hoist modification for $22,000. Alternatively they could choose to purchase a cheaper unmodified van and modify the front of the vehicle to accommodate the wheelchair by the driver and continue to use the ramps previously purchased with funding from the Ministry. On the basis of the evidence available, $21,000 plus GST ($2,025) is a level of funding which should enable the appellants to purchase an adequate vehicle for Mrs Perry's transport.[5] The Authority considered that the request for assistance to purchase a vehicle costing $46,683.89 was totally inappropriate in the context of the Act. The Chief Executive's decision that he would assist with hire purchase payments to purchase a vehicle to a maximum value of $21,000 excluding GST was upheld, although no distinction should be made in respect of the amount spent on modification and the amount spent on the van itself. [6] In respect of that decision, the questions for the opinion of the Court have been formulated as follows:[a] Was there any evidence upon which the Authority could base its decisions: - [i] That a suitable modified van could be purchased for $21,000 plus GST? [ii] That installation of a front hoist in such a vehicle was not "essential and not reasonably avoidable" in respect of any permanent transport solution for the appellant? [b] Was either of the Authority's decisions (referred to in Question 1) a decision which no reasonable Authority could have reached upon the evidence it heard?[7] It is convenient to deal with the second matter, namely the issue of whether or not a front hoist was necessary, first. The Authority had earlier dealt with a request for financial assistance for a hoist to be fitted to a hire van. In that decision it had concluded that the evidence was clear that for short trips and on wet days there were clearly advantages in the appellant travelling in the back of the van rather than the front. It said that in that decision that for longer trips there may be occasions when for social reasons and reasons relating to Mrs Perry's propensity for car sickness that the advantages of her travelling in the back are not as clear cut, but still exist. The Authority repeated that conclusion in its decision on the present appeal and said that it had not heard anything that would persuade it that different conditions should apply to any vehicle purchased on a permanent basis. It had not heard any evidence which persuaded it that motion sickness was a major issue for Mrs Perry in respect of short trips around Dunedin and Mosgiel. The Authority did not consider that the costs involved in providing a front hoist to the van can be characterised as essential and not reasonably avoidable. The Authority held that itsview in this matter was reinforced by evidence which it had that with what was termed a "walk through vehicle" it was possible to modify the vehicle by removing the front seat and positioning the wheelchair beside the driver. The witness estimated the cost of that modification to be "a couple of thousand dollars", which the Authority noted compared favourably to the cost of $12,000 for a hoist installed in the front of the vehicle. [8] On the basis of that discussion, I am satisfied that there was both evidence to support the finding, and the finding was not one which no reasonable Authority could have reached. In essence, the issue was whether the additional cost in providing a front access vehicle over a rear access vehicle was essential and not reasonably avoidable. That involved an assessment of all of the evidence as to Mrs Perry's needs, the costs of the respective options, and such matters. There was evidence on all of these aspects before the Authority. In an appeal to the Authority, an unduly technical approach is not appropriate. The matter is not to be considered on the strict application of an onus of proof. However, the Authority could rightly have regarded it as being for the appellants to demonstrate that the additional cost of providing front access over that in providing rear access was necessary or at least desirable. The issue of whether there was any evidence to support the finding needs to be viewed in that light. I am satisfied that the issue was properly considered by the Authority, in the light of all the evidence, and that the decision is not one which falls into the category of an error of law because there was no evidence to support it or because it was a decision which no reasonable Authority could have reached on the evidence. On this issue, the appeal must be dismissed. [9] That leaves the first question, namely whether a suitable modified van (that is, modified to provide rear access) could be purchased for $21,000 plus GST. In my view, having regard to the way in which this matter has developed, and the length of time which has passed since the Authority's decision, and since the Ministry's initial offer, it would be a somewhat sterile and artificial exercise to consider that question. Whether or not there was evidence to support a decision that a suitable modified van could be purchased for $21,000 plus GST in September 2003 (or in November 2002 when the offer was made) must bear little relation to whether a suitable modified van could be purchased for that price in 2005. If I were to hold that there was evidenceto support that decision in 2003, so as to uphold the decision, that might well leave Mr and Mrs Perry vulnerable to rises in costs, in that it may now be unrealistic to purchase a suitable modified van for that figure. That would not deal appropriately with the real issue between the parties, which must be whether the amount is realistic now. [10] The question of whether front or rear access should be provided was the subject of the original decision of the Department, and of the Appeal Authority. Questions of cost necessarily involved considerations of costs of both front and rear options. Now that that issue of front or rear access has been resolved, by my decision on this appeal, the question of cost can now be focused on a suitable vehicle modified to provide appropriate rear access. I consider that that issue needs to be addressed having regard to current costs. [11] For these reasons, I consider that the appropriate course is to refer the matter back to the Chief Executive for reconsideration on that aspect. Under s 12Q of the Act, a case stated is to be dealt with in accordance with the rules of Court. Part 11 of the High Court Rules applies. Under rule 725(d), this Court may make such order in relation to the matter as it thinks fit. I order that the Chief Executive reconsider the amount which would be appropriate to purchase a van suitably modified to provide adequate access for Mrs Perry in accordance with the decision of the Authority. [12] In the circumstances there will be no order as to costs. "A D MacKenzie J"SolicitorsMinter Ellison Rudd Watts, Wellington, for appellants Crown Law Office, Wellington, for respondent