Vui (estate of Ariki) v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 273/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN RONGO TERESA VUI (ESTATE OF MICHAEL ARIKI) of Auckland Appellant (Appeal No. DCA 329/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 27th day of November 1998 APPEARANCES L Brown for appellant D Fortiades for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to the payment of childcare payments following the death of her partner, Michael Ariki (the deceased). The appellant lodged a claim with the respondent on 12 May 1984 following the death of her partner in a motor vehicle accident on 5 April 1984. At that time they were living in a de facto relationship from which they had one daughter, April. In 1986 April received a lump sum payment from the respondent as being the 2 deceased's dependant child. At the date of the deceased's death, April was 17 months of age. The respondent's claim file was archived in 1989 and has subsequently been destroyed In January 1997 the appellant applied to the respondent for entitlements under the Act, including a claim as a spouse and for childcare. In her declaration in support of the claim the appellant stated: "I was in a relationship with Michael Ariki 15.3.64 died April 5 1984 right up until his accidental death. We had a child April Teteava Ariki born 11.11.82 and who is still residing with me and would like to claim for a spouse payment. And also would like to claim for child care which I had never been told about from ACC for my daughter April Ariki." On 6 March 1997 the respondent advised the appellant's advocate that she was not entitled to the payment of child care as prior to the deceased's death she was the primary caregiver for her daughter April whilst the deceased was then unemployed. In addition, the respondent advised that under the Regulations which commenced from 1 April 1992 an application for child care had to be made before the child attained the age of 14 years. On that basis, therefore, the application was declined. On 19 March 1997 the appellant's advocate wrote to the respondent and stated: "You refer to Teresa being the primary caregiver in the home whilst Michael was unemployed. We are in the process of having Income Support ... ascertain whether or not Michael was contributing to this scheme [liable parent scheme] which is highly likely given that his name appears on April's birth certificate as being her father. Teresa can attest to the fact that Michael would also take his daughter on outings and brought her clothing, presents and other things she wanted and/or needed." After receiving that information the respondent notified the appellant's advocate on 7 May 1997 that under section 80 of the Accident Compensation Act 1982 the appellant was not entitled to any child care aid as such because immediately prior to his death the deceased was unemployed and the appellant was the primary caregiver of her daughter April. The appellant applied for a review of that decision and the Review Officer upheld the respondent's primary decision. It is against that decision which the appellant now appeals. At the hearing of the appeal I agreed that the appellant and her mother, Karinia Vui should also give evidence. The appellant wanted to make it clear that she felt that she had been let down by the respondent in that her early inquiries as to entitlements had not been adequately answered. She considered that the respondent's staff should have explained to her more fully and simply the types of benefits which may have been available to her immediately following the deceased's death. She said that she had called at the respondent's office on numerous occasions but it was not until 1997 that she really became aware of claims she could have made. Unfortunately the 3 respondent's file is not available so there is no record of whether or not file notes were made of those interviews. However, the appellant made a similar claim to the Review Officer and has made the same claim to me on oath and I must therefore accept that she did make inquiries which she considered were not satisfactorily answered. The appellant also told me that she and the deceased had lived together from the time they were 16 years of age and that she was 17 when April was born. She said that because of her age her mother would not consent to their being married. The appellant said that at the time April was born both she and the deceased were unemployed and that the deceased remained unemployed up until his death. They were both in receipt of the Unemployment Benefit from which they paid her mother $80 per week board. She said that she went out training and playing netball when the deceased would take care of their daughter. She said that they shared equally the duties of looking after their daughter which included the deceased bathing the child and generally dressing and feeding her. She said that after the deceased's death she then transferred from the Unemployment Benefit to the Domestic Purposes Benefit. She also said that the deceased was endeavouring to find employment but had not been able to do so. That evidence was confirmed by Mrs Vui. Mr Brown submitted that the appellant had a claim under section 80(2)(a) of the Accident Compensation Act 1982 for childcare which was preserved by section 135 of the Accident Rehabilitation and Compensation Insurance Act 1992. He submitted that on her evidence the appellant had continued to request child care assistance which should be interpreted as a "claim" which remained open and valid by virtue of section 135 of the 1992 Act. He submitted further that the entitlement was preserved by section 149(1) of the 1992 Act. Mr Brown submitted that it was not necessary to establish that the deceased was the primary caregiver in order to qualify for childcare assistance under section 80 of the 1982 Act. He submitted that as a matter of justice, because of the way in which the appellant's requests for assistance were treated, the appeal should be allowed. Ms Fortiades submitted that the issue had to be determined under the transitional provisions of the 1992 Act and the Regulations made thereunder. She submitted that having regard to the decision of Judge Ongley in Messner v ARCIC (180/97) the appellant's entitlement under section 80 of the 1982 Act had to be established by a grant of compensation made by the respondent. She submitted that as the respondent had not made such a grant section 149(1) of the 1992 Act did not preserve her ability to be assessed for entitlement under section 80 of the 1982 Act. Section 80 of the Accident Compensation Act 1982 in so far as it applies to this appeal state: "80. Compensation for pecuniary loss not related to earnings- (2) Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any compensation payable, may - 4 (a) Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such weekly compensation as the Corporation thinks fit for any quantifiable loss of service of a domestic or household nature which was previously provided on a regular basis and which is proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Corporation thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service; Section 135 of the 1992 Act in so far as it applies to this appeal state: "135. Relationship of this Act and former Acts---(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act. . . . ) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act. (5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that would be covered by this Act had it occurred on or after the Ist day of July 1992.' Section 149 of the 1992 Act in so far as it applies to this appeal state: "149. Compensation for pecuniary loss not related to earnings---(1) Where any person was receiving or entitled to receive any compensation under ... section 80 of the Accident Compensation Act 1982 immediately before the Ist day of July 1992, that section shall continue to apply to payments in respect of that person until the 31st day of December 1992 as if those sections had not been repealed. 5 (2) The reference to the 31st day of December 1992 in subsection (1) of this section shall be read as the 30th day of June 1993 in respect of compensation under ... section 80 of the Accident Compensation Act 1982 that is compensation in respect of - (c) Loss of quantifiable service (being payment for services of a domestic and household nature or for the care of children, where the services were previously provided on a regular basis by the deceased person for a family or household of which they were a member): or . . . (7) Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under ... section 80 of the Accident Compensation Act 1982 in respect of child care (where the child care was previously provided on a regular basis by a deceased person for a family or household of which the deceased person was a member), immediately before the Ist day of July 1992, those sections shall continue to apply in respect of that person, in relation to child care but not other loss of quantifiable service, as if those sections had not been repealed; and the entitlements in respect of the person may be reassessed from time to time under those sections. (8) Where subsection (7) of this section applies, the person concerned - (a) Shall not be entitled to receive compensation in respect of child care under regulations made under this Act; but (b) Shall be entitled, not more than once in any 12-month period, to elect to be assessed for entitlement for compensation for child care under regulations made under this Act. (9) Following the assessment referred to in subsection (8)(b) of this section, the person concerned may irrevocably elect - (a) That subsection (7) of this section shall no longer apply in respect of the person; and (b) That the entitlements of the person to compensation for child care shall thereafter be determined in accordance with regulations made under this Act. (10) For the purposes of subsections (3), (4), and (7) of this section, a person shall be deemed to be receiving compensation immediately before the Ist day of July 1992 if that person has an entitlement to do so by virtue of a decision on review or appeal given after that date, and the application for review was made before the Ist day of October 1992." I do not accept Mr Brown's submission. It is quite clear from section 149 of the 1992 Act that the appellant only has an entitlement if she was already in receipt of compensation under section 80 of the 1982 Act immediately before the 1992 Act came 6 into force on 1 July 1992. In order to establish a claim under section 80(2)(a) of the 1982 Act. the appellant had to demonstrate that the deceased provided regular child care to April prior to his death. However as no grant of compensation was made by the respondent under section 80 of the 1982 Act before 1 July 1992, there was no grant which could be preserved under section 149(1) of the 1992 Act. I do not accept that the fact that the appellant made numerous requests to the staff of the respondent for information regarding entitlements establishes that she had a claim which could be preserved by the transitional provisions of the 1992 Act. Notwithstanding that position, the evidence demonstrates that both the appellant and the deceased received the Unemployment Benefit at the time of his death and that the deceased did not provide any quantifiable childcare for April on a regular basis. The appellant told me that they shared the chores of looking after April on a normal household basis but there was nothing said as to what else the deceased did. Furthermore, on his death, the appellant became entitled to the larger Domestic Purposes Benefit in lieu of the Unemployment Benefit which both she and the deceased had previously received. I am satisfied that the Review Officer came to the correct decision and there is no reason why I should disturb her findings. The appeal is dismissed DATED at WELLINGTON this |8th day of December 1998 Buenades A W Middleton District Court Judge dca329-97.doc (nr)