Upu v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON (2015] NZACC 121 ACR 238/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN TANGIMETUA UPU Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 20 November 2014 Appearances: J Miller for the Appellant P A McBride for the Corporation Judgment: 27 May 2015 RESERVED DECISION OF JUDGE P A CUNNINGHAM [1] Mr Upu suffered a head injury in a fall down some stairs on 25 August 1995 when he was aged 25. He had suffered a previous brain injury when living in Rarotonga some six years earlier. His function improved over those six years. ACC accepted cover in relation to the 25 August 1995 injury; it being accepted that Mr Upu's current incapacity was as a result of that injury. [2] Mr Upu is unable to work or live independently. Following his release from hospital in late 1995 he went to live with his parents in Wellington. After they returned to live in Rarotonga in 2001 he came to Auckland where he has lived with one or both of his sisters and other family members. He lives in a house owned by a sister and her husband. [3] Over the years 1996 to 2011 Mr Upu has been receiving significant levels of home help and attendant care as part of a plan for his social rehabilitation. [4] In 2011 two support needs assessment ("SNA") reports were completed which assessed the level of care Mr Upu was entitled to at a fraction of that previously available to him. It went from 90 hours per week to 15 hours per week. [5] Mr Upu applied to review the decision of ACC of 17 June 2011 adjusting his level of attendant care to 15 hours per week. That review came before Mr Robert Wood on 2 April 2012. [6] The Reviewer found that ACC was correct in determining the level of attendant care based on the two independent reports that had been obtained. He found that there was no evidence ACC had not taken into account and that the decision of ACC was consistent with the two SNAs (assessment reports). There was no evidence that ACC's decision was clearly wrong. He dismissed the review application. [7] Mr Upu has appealed the review decision. The case for Mr Upu [8] Mr Miller pointed out that an independent allowance assessment awarded 74% permanent impairment to Mr Upu on 14 December 2000. That is a significant degree of impairment that is not consistent with the current allowance of fifteen hours attendant care and home help per week. [9] Previous social rehabilitation care assessments had awarded significant weekly hours for supervisory care and for attendant care. The 2011 assessments especially the one of 26 May 2011 conducted by Ms van Grunsven noted that Mr Upu needed supervision during waking hours including that he needed supervision in relation to cooking. [10] The rationale for the reduction in care is that there was naturally occurring support available from family members. Mr Miller submitted that the level to which the family were assisting Mr Upu must be based on what is reasonable, which placed the family in the position of providing a high level of care. [11] Mr Miller relied on the decision of Knighton 65/05 where Judge Barber said: That account must be taken of such factors that family members have to live their lives. 12] In essence Mr Miller submitted that ACC had not properly investigated the impact on family members' lives or a proper consideration of what was a reasonable contribution in this case. [13] Mr Miller was concerned that there had been a change in interpretation of social rehabilitation clauses since October 2009 when a political announcement by the then Minister of ACC that ACC had become too expensive and that cuts and expenditure would be necessary. This had Mr Miller said coincided with new instructions to ACC to reduce any indirect supervision. The case for ACC [14] Attendant care decisions are discretionary and appeals had to be on the basis that there was wrongfulness in the administrative law sense. Counsel relied on Kacem v Bashir [2010] NZSC at 112 where the Court said: In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. [15] The starting point under the Act is the assessment. When the family were not happy with the first assessment of 14 hours a second one was undertaken and the result was 15 hours. [16] Both assessments identified that Mr Upu had limitation with walking, fine motor skills, ability to access transport, short-term memory and some cognitive problems necessitating some prompting. [17] Mr Upu's domestic and other circumstances have been taken into account. [18] Mr McBride rejected the submission that the family were being "forced" to look after Mr Upu. No unreasonable burden was placed on family members. As expressed in ACC v Godman [2014] NZACC 86 the contemporary assessment under the Act is all important and it is that which must be displaced. [19] In this case ACC properly exercised its discretion. Social rehabilitation reports [20] In a bundle of documents that I was provided with, was a support needs assessment undertaken more recently in August or September of 2014. This was completed by an assessor from Kidz Therapy which is a specialist rehabilitation services provider. What this report identifies is that since the two reports of 2011, Ms Tea Upu the sister of the appellant who was his primary carer for over ten years has commenced work outside the home. That has resulted in Mr Upu's parents returning from Rarotonga to live with the appellant, his sister and her family to assist with looking after Mr Upu. [21] In terms of grooming, showering and dressing Mr Upu is rated as five on the FIM (Functional Independence Measure) as requiring supervision and assistance. Part of the discussion on this area noted that if Mr Upu was left to his own he would likely not shave, wash his hands or face or maintain his general appearance. He requires verbal prompting to initiate the tasks and an estimate was made of ten minutes per day or one hour ten minutes per week for this task. Similarly with grooming leading to a total of two hours and twenty minutes per week. [22] In terms of stairs Mr Upu has needed supervision. He has a right-sided hemiplegia and is not able to use his right hand due to right-sided weakness. Since ACC funded rails were installed at the front door to help him safely enter and exit the home, he does not have to be supervised on the stairs. Therefore no direct support is required. (23] In terms of communication and comprehension again Mr Upu was rated at a five as needing supervision. The assessor noted that he needs support to communicate and understand what is being asked of him when time pressured or when tired. Certain strategies were identified that would be able to assist Mr Upu which included being in a quiet environment (noise from children, too many people around him creating noise or tension). I simply note that Mr Upu lives in a very busy household where there are four other adults and three children. No time was allocated for this function of communication and comprehension. 24] Under the heading of social interaction again Mr Upu was rated as needing supervision noting that when he is in a new environment he can be very quiet and withdrawn and can experience a degree of social anxiety in a new group or environment. It was thought that the family could provide this. [25] In terms of problem solving, reference was made to a neuropsychological report from 2002 which said: He remains reliant on his families for the necessities of daily living. He cannot care for himself in a number of areas. He is incapable of managing his finances, cannot drive, walks with great difficulty, cannot go out of the home without supervision and has a profound memory impairment that would preclude any reasonable degree of planning or organisation or behaviour. I consider he would be unsafe to cook without supervision and generally unable to care for himself. If his family were unable to continue to provide care, Tangi would require residential placement. [26] Mr Upu's father reported that his son would not engage in any tasks if he was not prompted to do so. Family interventions in this area enable Mr Upu to engage in activities which increase the quality of his life and independence. However this was noted as having an effect on his father who has to plan his day and weekly routine around his son's needs. When left alone Mr Upu will not participate in tasks of interest. He needs support to set up and plan these tasks. [27] Mr Upu has no involvement in his own financial affairs and does not know how to use an ATM and could not recall his PIN number. His father handles his financial affairs although it was not clear if legal mechanisms were in place authorising this. [28] He would not clean his room or perform some share of the domestic duties if he was not supervised. An example was given that Mr Upu would pour all of the dishwashing liquid into the sink. He needs to be supervised to ensure he only puts in the appropriate amount. He is unable to organise his free time at home, he needs support with this. The amount allocated for this segment was thirty minutes per day or three hours thirty minutes per week. [29] Suggestions were made by the report writer about how Mr Upu might be supported to improve problem solving and another neuropsychological assessment was recommended. As was ongoing occupational therapy support and a more restructured routine including further education for the family in relation to his cognitive difficulties. [30] In terms of his memory it was noted that Mr Upu has very impaired memory and difficulty recalling recent events and relevant information learned. The father reported that his memory is a lot worse (only 40% of what it used to be). Mr Upu was not able to tell the assessor what month, year or date it was. [31] No allocation of time for family involvement was recommended. However again helpful options were set out that might assist Mr Upu with his memory deficits which included a whiteboard to document daily or weekly activities, rest periods during the day, lists and visual prompts, working in a routine and structured environment and participating in a concept described as "errorless learning". This would need to be carried out by an occupational therapist in his home. [32] Under the heading of car transfers and community access, the assessor noted 12.5 hours per week to provide support for Mr Upu to take part in community participation. Natural supports were available to assist Mr Upu attending church and during the week to take part in family outings. Mr Upu enjoys swimming which takes two hours a day, he is currently going twice a week but would like to go more often. This is important both for enjoyment and exercise. Mr Upu's father said he would like to be able to take his son to the beach or other parts of Auckland but this was not possible with the current lack of transportation. Mr Upu enjoys going shopping with his parents either to buy items or just to get out of the house. [33] Again the assessor made some good practical suggestions to assist Mr Upu in this area including community based programmes which would create a predictable routine for Mr Upu and alleviate the burden on other family members. Secondly that ACC funded taxis or possibly an ACC funded vehicle would be of assistance in transporting Mr Upu (this was thought to be underway). It was noted that Mr Upu might benefit from spending time with others of a similar age. 34] In terms of the area of emotional status Mr Upu was rated as three in this area and there was indication that he felt sad several times a week. This commonly arose when his father told him off for walking incorrectly. His father indicated to the assessor that shouting at his son encouraged him to change the way he was walking. The assessor again made helpful suggestions about how this situation might be alleviated for example by physiotherapy input. No hours were given for this. [35] There was nothing in the area of employability in terms of work outside the house. It was noted that Mr Upu does contribute to domestic duties in the home where he lives with his sister and her husband and their family. That includes some maintenance of the garden and outside, domestic duties such as laundry, meals, and dishes. However his contribution to these are at a very basic level. One hour and thirty minutes was allowed for the family's contribution to Mr Upu's share of domestic duties. (36] In terms of safety judgment Mr Upu was rated five as needing supervision. However it was noted that Mr Upu is able to be left alone for several hours at a time. Thirty minutes a day Monday to Friday or two hours thirty minutes per week was recommended as an appropriate time allocation for safety judgment. [37] Again the assessor helpfully set out options that might improve the situation. This included attendance at a day programme but also considered the possibility of Mr Upu residing at a residential facility either on a temporary or permanent basis. [38] The total time of care recommended was twenty hours and forty minutes per week (20 hours and 40 minutes). [39] Further assessments were recommended for occupational therapy, transport assessment and direct support to access the community. There was also a recommendation to look at treatment for the right calf muscle tendon and a splint and shoe modification to assist with Mr Upu's mobility. Physiotherapy input was also suggested as was support to address his periods of sadness and his interactions with his father around this. [40] The first social rehabilitation assessment carried out on 8 February 2011 described Mr Upu as being generally happy and easy going. His "excellent family support" was recorded. In terms of his overall functioning, this was similar to the report carried out in July 2014. Except that as at 2011 it was noted that Mr Upu could only be left alone in the home for an hour. At this time Mr Upu was being cared for by his sister Tea. The report noted that she was interested in working part time 9am to 3pm but was concerned about how Tangi would be able to manage alone. [41] I note that at the time of this assessment Mr Upu's family were not aware that the payments being received from ACC were for Mr Upu's care. The sister Tea was unaware he was entitled to apply for a government benefit. This raises both communication and information issues as between the Corporation and Mr Upu's family. [42] The second assessment is very similar to the first. It is dated 26 May 2011. By this date Mr Upu's father had recently moved into the household and was taking an active role in Mr Upu's care. This report acknowledged that "without the structure of family life his needs would be considerably greater, he cannot live alone". This assessor stated Mr Upu could not be left alone for more than an hour at a time. That he was cooked meals that he could manage to eat with one hand (unable to cut up meat), and had to be prompted to attend to daily tasks. Analysis and discussion [43] Mr Upu is a 45 year old man. Were it not for the brain injury for which he has cover, it is clear that Mr Upu's life would be very different than it is now. He is not able to live independently. It is clear that without the close supervision, love, care and support from his family, Mr Upu would be living a residential facility. [44] It is equally clear that over the past 20 years various family members, his sisters and Tea in particular and his father have altered their lives considerably to care for Mr Upu. [45] When the two 2011 assessments were completed, Mr Upu's sister Tea Upu told both assessors that she will not leave him alone for more than an hour. This is because of her concerns for his safety which not only centred around his physical safety but his psychological safety saying that because of his cognitive deficits he was vulnerable to others. She would be concerned if he was out in the community because he is susceptible to influence from others. At one time he attended a centre daily but the family ceased his participation in the activities there because of activities and influence from others that they did not consider were beneficial to Mr Upu. This demonstrates the family's concerns and support for Mr Upu's welfare. But non-attendance at outside programmes may also be limiting the extent to which he could be socially rehabilitated. [46] Mr Upu's father is now caring for him during the day. The July 2014 report signals that there are some difficulties with this. For example Mr Upu's requirements are clearly impacting on his father's own activities. And the manner in which Mr Upu's father corrects his son's walking which I have referred to at para [34] is having a detrimental effect on Mr Upu. [47] Clearly the position has changed somewhat since the 2011 assessments. It is apparent from the 2014 report that the assessor was of the view that there were various other supports that could be put in place for Mr Upu that may both improve his quality of life and his social rehabilitation and decrease the stress on family members particularly his father. Any requirement to assist his son which places stress on his father, must in my view be outside what can be reasonably expected from this particular family member. [48] In terms of the other adults in the household previous reports indicate that Mr Upu does not have a close relationship with his mother. However that may have changed as the reports I am referring to are back in the 1990s. It is obvious that his sister Tea and her husband both work. Therefore the extent to which adults in the family other than his father can reasonably be expected to assist Mr Upu are more limited because of their particular circumstances and especially outside work obligations. [49] This is a pressured household with five adults and three children. understand it to be a three bedroomed home. It cannot be easy. [50] I have three social rehabilitation assessments. I have no criticism of any of them from a qualified assessor. That being the case they must stand. As the Court said in Smith v ACC [2012] NZACC 233, at para 27. The Court is not equipped to make its own assessment based on evidence of needs and estimates. That is done by an assessor under relevant legislative provisions.. . And at para [28]: ..In the absence of a competing assessment made by another qualified assessor, the only question that the Court can decide is whether the assessor erred to an extent that makes the assessment unreliable as a basis to reduce the (claimant's) entitlement. [51] The Reviewer Mr Lock's reasoning was the same as mine, albeit he had only the two 2011 assessments. In light of Smith v ACC (supra) his decision cannot have been wrong based on the evidence he had at the time. [52] Notwithstanding that, I am left with a real concern about whether what can be reasonably expected of Mr Upu's family members has been accurately assessed. Both clause 14 of the first schedule to the Act (which relates to attendant care) and clause 17 of the same schedule (which relates to home help) require the Corporation to take this into account (also see Knighton v ACC [2005] NZACC 65 (7 March 2005)). [53] There is nothing before me by way of evidence from the family nor was there before Mr Wood the Reviewer, apart from the comments recorded by the assessors in their reports. [54] The 22 September 2014 social rehabilitation assessment is more recent in time and therefore reflects Mr Upu's current attendant care and home help needs. This is a relevant consideration. The appeal is allowed to extend the hours for attendant care and home help as set out in that assessment. [55] The review decision approving fifteen hours per week is quashed. As from 22 September 2014 ACC is to provide twenty hours and forty minutes (20 hours and 40 minutes) weekly attendant care and home help to Mr Upu. [56] I direct the Corporation to review how Mr Upu's social rehabilitation may be improved so that it restores his independence to the maximum extent practicable (s 79 of the Act). One of the purposes of the 2001 Act requires the Corporation to have a primary focus on Mr Upu's rehabilitation with the goal of achieving an appropriate quality of life ($ 3(c)). [57] That can be achieved by identifying and implementing the suggested improvements that might be made in the assessment of 22 September 2014. This includes an up to date neuropsychological report, visual and other aides to establish a better daily weekly routine for Mr Upu, solving transport issues, physiotherapy and orthotic issues relating to his mobility, occupational therapy input and consideration of a suitable community day programme. [58] If Mr Upu's quality of life is not improved by these options, it may be necessary for the Corporation to reassess whether 20 hours and 40 minutes is adequate for the time family members contribute to his care. [59] It is vital to talk with and listen to the needs of other family members who assist with Mr Upu's care to ensure that what can reasonably be expected of them is not overstepped. [60] If the parties are unable to agree on costs, memoranda can be filed within 21 days and I will decide the matter of costs on the papers. Maturinghe. P A Cunningham District Court Judge ACR 238-12 - Upu doc (sp)