Coleman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. $ 8 /99 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 THERESE RUTH COLEMAN DCA 355/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of February 1999 APPEARANCES: Mr A R V Rowlett advocate for appellant Mr L T Davies counsel for respondent DIRECTION OF JUDGE M J BEATTIE The appellant has appealed to this Court against the Corporation's decision to cancel her Child Care entitlement. There is no suggestion that she does not have a need for Child Care and in all respects, save one, she fulfils the criteria laid down for receiving 2 Child Care under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992. The appellant's difficulty, and which was the reason for the Corporation cancelling her entitlement, was that she could not bring herself within the definition of "claimant" as that person is defined in the regulations. Claimant in the regulations means "A person who has suffered personal injury and had her claim in respect of it accepted under the Act and who was the person who primarily undertook the care of children in the home before the personal injury occurred." In this case it is common ground that the medical evidence establishes that the appellant's inability to provide care for her children herself arises from the injuries she suffered in a motor accident in 1983. However, at the time of that accident she had no children. She had her first child in 1985 and has had three further children since then, the youngest being born in 1995. The medical evidence makes it clear that the appellant will continue to have problems with her back as a consequence of the injury she suffered in that motor accident and the prognosis is that she is likely to require Child Care for sometime to come. The Corporation's decision letter of 18 March 1998 makes it clear that it was relying on specialist medical reports determining that her current back problems were attributable to her motor accident in 1983 and not to an aggravating accident which occurred in 1993 and that as she could not bring herself within the definition of claimant, she was not entitled to Child Care pursuant to the provisions of section 26 of the Act. The decision letter makes it quite clear that the decision is made under section 26 of the Act and no other provision, save for the regulations which are applicable to 3 section 26. In particular the Corporation, through Counsel at the hearing, acknowledged that it has not considered the matter under the discretionary provisions of section 26A. It is a fact that a policy direction was issued by the Minister on 2 September 1996 pursuant to section 159 of the Act enabling the respondent to consider payments or provision of social rehabilitation to be made even though the same may not have been authorised in regulations. Counsel for the respondent acknowledges that the necessary statutory frame work is now in place for the Corporation to be able to look at the appellant's claim under the discretionary powers which emanate from section 26A of the Act and I consider that it is desirable that this whole issue be referred back to the Corporation for it to consider the matter in that light before this Court is called upon to determine the issue raised in this appeal. Accordingly then, pursuant to Rule 16 of the Appeals Regulations, I remit this matter back to the respondent for further consideration and determination. I direct that the respondent reconsider the appellant's claim pursuant to the discretionary powers now vested in the respondent by section 26A of the Act. Any decision made thereunder shall constitute a fresh decision for the purposes of section 89 of the Act. In the meantime this appeal is adjourned sine die to await the outcome of that determination. DATED at WELLINGTON this I day of March 1999 M J Beattie District Court Judge Coleman.doc(gm)