Laming v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. [2011] NZACC 3 3 8 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PAIGE LAMING (ACR 488/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at on WELLINGTON on 27 October 2011 APPEARANCES Mr Jonathon Miller, Counsel for Appellant. Mr P McBride, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from a review decision dated 22 July 2011, whereby the Reviewer determined that he had no jurisdiction to review a letter issued by the respondent on 15 April 2011, it being determined that whilst the letter contained a decision, it was nevertheless a discretionary decision made pursuant to section 68(3) of the Act, and as such, by virtue of section 68(4) and section 134(1A), was a decision that was not reviewable. [2] The background facts relevant to the issue in this appeal are not in dispute and may be stated as follows: As of the date of the respondent's decision in issue, the appellant was 12 years of age. 2 At birth in August 1998 the appellant sustained a severe hypoxic insult to her brain which resulted in cerebral palsy. She also suffers from epilepsy with seizure activity. The appellant has cover for her medical condition and has been in receipt of attendant care essentially from her birth. . Her main carer is her mother, Ms Donna Carpenter. In mid-2007 Ms Carpenter advised the respondent that she and her family were moving to Australia as she had entered into a new relationship and her partner was seeking to pursue career opportunities in Australia. By letter dated 9 August 2007, the respondent advised that it would continue to provide payment for attendant care for the appellant. Although the respondent sought to obtain updated assessments of the appellant, this did not occur. In a letter to Ms Carpenter in June 2009 the respondent advised that it was unable to make arrangements for the assessment of the appellant to be done in Australia and it required the appellant to return to New Zealand for that purpose. It advised at that time that attendant care payments would continue until November 2009 by which time a further updated assessment was expected to have been completed. . Ultimately the respondent carried out an assessment without the appellant herself. . In July 2010 the respondent carried out an assessment of the appellant in Australia through a New Zealand Assessor. It was identified at that point that Ms Carpenter and her partner were separating and that Ms Carpenter was planning to move to the United Kingdom with her children, including the appellant. Attendant care continued for the appellant at the discretion of the respondent, but in a letter dated 21 December 2010, the respondent indicated that it would only continue such attendant care until 30 April 2011. In April 2011 the respondent considered the whole matter and in a letter to Ms Carpenter dated 15 April 2011, the letter now in issue, the respondent indicated that it would not approve any further extension of overseas attendant care, and that the appellant no longer met the criteria for same. The respondent advised that it would only pay attendant care for a further three months, with the last payment being on 15 July 2011. . Review rights were not given with that letter. An application for review was lodged on the appellant's behalf through John Miller Law, and the review was considered on the papers after receiving written submissions from both parties. In a decision dated 22 July 2011, the Reviewer determined that she had no jurisdiction to consider the respondent's letter of 15 April, as it was a letter to which section 134(1A) applied and was a matter in respect of which there was no right of review. [3] The issue in this appeal is essentially a question of law, and Mr Miller submitted that the provisions of section 129 of the Act, which relate to payment for attendant care to a claimant outside New Zealand, give rise to a decision quite distinct from any decision made pursuant to section 68 of the Act and as such it is a decision which gives rise to a right of review and, if necessary, appeal. [4] Mr Miller submitted that section 129 provided for a specific discretion being given to the respondent in relation to the provision of attendant care for a claimant overseas, and that discretionary decision was a decision which could be the subject of review in the ordinary way. [5] Mr McBride, Counsel for the Respondent, submitted that the discretion which was given to the respondent pursuant to section 68(3) in relation to providing attendant care to a claimant overseas, and which was introduced by an amendment to the Act in 2005, was the means by which the respondent could extend the period of provision of attendant care to a claimant overseas for longer than section 129 of the Act would normally permit. [6] In his submissions Mr McBride referred to the comments, reasoning and purpose provided by the government of the day which led up to the amendment of the Act to 4 include a discretionary power for the provision of certain entitlements where the main relevant statutory provision would not so provide for such an entitlement. [7] It was counsel's submission that the Reviewer had correctly determined that the letter in question was not one which could be the subject of review by reason of section 134(1A). DECISION [8] The issue in this appeal requires consideration of three statutory provisions, and in view of the fact that two of the relevant provisions were introduced by way of amendment to the Act in July 2005, I consider that the background to the introduction of those amendments, as contained in Cabinet Committee consultations, do have relevance when considering the correct intent and purpose of the new legislation. [9] The relevant statutory provisions are as follows: Section 68 Corporation provides entitlements in accordance with this Act (1) The Corporation provides entitlements to claimants in accordance with this Act. ( 2 ) If any provision of this Act requires the Corporation to provide an entitlement (regardless of how that requirement is expressed), the Corporation is required to provide the entitlement only to the extent required by this Act. (3 ) However, the Corporation may, at its own discretion, provide an entitlement or a payment to a claimant if it is satisfied that- (a) the entitlement or payment could be provided but for a requirement in section 127(4) or section 129 or section 379(2), or in any of clauses 4, 13, 15, 17, 19(3)(e), 19(3)(i), 19(3)(j), 22(1), 22(2)(b), 22(2)(c), 22(2)(e), or 22(2)(f) of Schedule 1; and (b) the provision of the entitlement or payment would be consistent with the purpose of this Act (4) The exercise of a discretion under subsection (3) is subject to section 134(1A). It is to be noted that subsections (3) and (4) were added to section 68 by way of the 2005 Amendment. Section 129 Payment for attendant care to claimant outside New Zealand (1) The Corporation is liable to pay for attendant care for a claimant who is entitled to receive attendant care and who is outside New Zealand. (2) However, the Corporation is [not required to pay] for attendant care for longer than 28 days in each period during which the claimant is outside New Zealand (3 ) The Corporation is liable to pay the amount that the claimant would have received if he or she had been in New Zealand during the period he or she is outside New Zealand. 5 The words in (2) "is not required to" were the change to the wording of that subsection by the 2005 amendment, the previous wording being "is not liable to". Section 134 Who may apply for review (1 ) A claimant may apply to the Corporation for a review of- (a) any of its decisions on the claim: (b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay: (c) any of its decisions under the Code on a complaint by the claimant. 1A) However, a decision of the Corporation regarding the exercise of discretion under section 68(3) is not reviewable under Part 5 Subsection (1A) was a new subsection introduced in 2005 in relation to the new section 68(3). [10] Comments from the Cabinet Committee dealing with the proposed amendments to the Accident Compensation Corporation Act stated, inter alia, as follows: .. Clause 20 replaces section 68 of the principal Act and restates the nature of the Corporation's obligation to provide entitlements under the Act. The features of the new section and related amendments in the Schedules are - to use the words "is not required to" when indicating that the Corporation has a discretion to do something that would otherwise not be permitted (rather than "is not liable to"): to exclude the exercise of discretions under this section from the review process under Part 5 of the principal Act. [11] Leaving aside subsection (3), it is the case that section 68 of the Act makes it clear that the Corporation's obligations to provide entitlements to claimants is to provide such entitlements only to the extent set out in the Act. One of the statutory provisions which provides an obligation on the Corporation is section 129, which requires it to make payment for attendant care to a claimant outside New Zealand, but only for a period of 28 days in each period during which the claimant is overseas. [12] Thus it is the case that if a claimant is seeking payment of attendant care for a greater period than the statutory period, it must be one which is provided by another provision of the Act, and in the case of overseas attendant care, the discretionary provision of 68(3) specifically introduced a discretionary power to the respondent to make payment of attendant care for a greater period than 28 days "if the provision of the payment would be consistent with the purposes of this Act". 6 [13] The legislative background to the introduction of the 2005 Amendment to section 68 of the Act, makes it clear that any discretionary power to be given to the Corporation in the particular sections of the Act identified, was a discretionary power that was subject to the provisions of section 68(4), that is, that the exercise of that discretion was not a matter which could be the subject of review procedure. [14] I cannot accept Mr Miller's submission that section 129, with its change of wording, meant that there was a separate and distinct discretionary power granted to the respondent other than through section 68, and I find that it is only through section 68(3) that the respondent can exercise a discretionary power to make payment for attendant care for longer than 28 days to a claimant outside New Zealand. The change of wording in section 129(2) to "is not required to" is simply to identify that in conjunction with section 68(3,) a discretionary power to provide an entitlement can exist. [15] The statutory provision of section 68(3), as amended, has established a new set of discretionary powers for the Corporation, and which are quite distinct and limited to the statutory provisions referred to, and in respect of those particular statutory provisions the extension to an exercise of a discretion, is specifically a decision removed from any review consideration. Any other discretionary powers given to the respondent in the statute are subject to normal review considerations in accordance with section 134, and it is only those review decisions that come within section 134(1A) that are removed from having review rights, and I rule as a matter of law, that the respondent's decision which it made to terminate the appellant's attendant care entitlement whilst she remained outside New Zealand, was a decision which could not be challenged by way of review. [16] Accordingly, the review decision to the effect that there was no jurisdiction to consider a review of the respondent's decision to terminate attendant care, was the correct decision and this appeal is dismissed. DATED this 22 day of November 2011 M J Beattie District Court Judge