Kururangi v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 153 ACR 604/12, 50/14, 465/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN TUNOA KURURANGI Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 November 2014 Appearances: G Willson advocate for the Appellant P McBride for the Corporation Judgment; 18 June 2015 RESERVED DECISION OF JUDGE P A CUNNINGHAM Background [1] Mr Kururangi worked on the wharves at Tauranga for 35 years until 14 October 2002 when he suffered an accident at work when he fell down the hold of a ship. That resulted in a number of injuries including a left-sided head injury and a fractured vertebra at T4, a fractured skull and fractured ribs. [2] He underwent months of rehabilitation. In 2003 he was discharged home and, except for times when hospital admission has been required, he has since been cared for by his family, in particular his wife, "* * ***- [3] In September 2006 a social rehabilitation assessment was conducted. This noted that Mr Kururangi was an active sportsman prior to the injury. He is also an ordained lay minister. It noted there were safety issues with Mr Kururangi, essentially as a result of the head injury. For this reason he was not able to be left alone as he might, for example, get too close to heat and suffer burns. He would not know what to do in an emergency. [4] He had ongoing pain from the injury site. He suffered from frequent chest infections, he was gaining weight. He was assessed as needing 112 hours direct cares which was broken down into 59.5 hours for direct cares and 45.5 hours for organising, planning and safety. Overnight cares were assessed at 1 hour per night or 7 hours per week. [5] I note that around November 2010 there was a request to ACC to fund a pain relieving drug which was granted. A report from Mr Rick Acland from the Auckland Spinal Rehabilitation Unit noted with concern that Mr Kururangi was gaining weight and that he also was suffering from disturbed sleep. The doctor queried whether Mr Kururangi was suffering from sleep apnea. What lead to this appeal? [6] In May 2011 a support needs assessment was undertaken. This drastically reduced the number of care hours assessed as necessary for Mr Kururangi, from 119 hours to 71 hours. That was broken down into 56 hours attendant care level 1, 7 hours for community access and 8 hours for home help. [7] Part of the focus in this case for the appellant is a new assessment tool that was in use as at May 2011. The real change from previously had been in the reduction in the number of indirect supervision hours. In this case the reason for the change was because of the naturally occurring support provided by family. [8] ACC advised the change to the number of hours in a letter dated 1 August 2011. Mr Kururangi reviewed this decision, and the reviewer's decision was dated 21 December 2011. [9] The Reviewer, Mrs Maher, quashed ACC's decision and directed ACC to reassess Mr Kururangi's needs and to reconsider the balance of obligations to provide for his carers between ACC and Mr Kururangi's family. The Reviewer was concerned that insufficient weight had been placed on the fact that family members have their own lives to lead. [10] Mrs Maher directed ACC to reinstate the previous care hours as per the 2006 assessment until it had completed a reassessment. [11] ACC undertook a second assessment and this was conducted by Professional Rehabilitation Services (Mrs Bay) in a report dated 21 January 2012. Mrs Bay recommended 89 hours of care and home help. [12] ACC issued a decision on 23 February 2012. This approved the hours assessed by Mrs Bay as above plus an additional 10.5 hours for night-time care. [13] This decision was also reviewed, a review application was lodged on 16 April 2012. The Reviewer was Mr Woodhouse. Mr Woodhouse was concerned that ACC panel members had independently reviewed the assessment of Mrs Bay and altered the hours accordingly (adding the additional 10.5 hours). He said that meant there was a flaw in the process and that the matter had to go back to ACC for reconsideration. [14] As a result of that decision Mrs Bay was asked to review her original assessment. She did so and advised in a letter dated 24 October 2012 that she saw no need to change anything in her original assessment report. She explained that night- time hours were at the discretion of ACC. [15] This led to a third review before Mrs Maher in July 2013. Her review decision is dated 23 July 2013. The Reviewer found that the decision was not flawed to the extent that it was plainly wrong. [16] There was another aspect to this review application, and that was that the individual service plan (individual rehabilitation plan under the 2001 Act) was a working document rather than a contractual document as between Mr Kururangi and the Corporation. Preliminary matter [17] There has been a decision in this matter of Judge Ongley dated 24 January 2014. This dealt with whether or not all three review decisions can be dealt with, appeals to the decisions 50/14 and 604/12 were filed out of time. It also referred to wide ranging issues raised by Mr Willson dealing with aspects of the case that he wishes to argue, including the powers of Reviewers, and whether public law principles apply in a case like this. Judge Ongley said that Mr Willson was free to argue all of these matters in the context of this appeal. Submissions for Mr Kururangi [18] Mr Willson divided his argument into three parts. His submissions were full and wide ranging. I trust I have been able to extract and explain the main arguments. Part 1 [19] This section deals with what might be described as the normal issues raised in an appeal of this kind. [20] Mr Willson argued that Mr Kururangi's condition has not changed, but the family's circumstances have changed in the sense that both Mrs Kururangi and one of her daughters altered their circumstances so that they could be available to care for their husband and father. [21] Reference was made to Mrs Bay's letter of 24 October 2012 in which she said that her job as an independent assessor is to assess Mr Kururangi's needs. That ACC would then take into account what was fair and reasonable to add to the night time hours to reflect the disruption to the sleep of caregivers. She agreed that 30 minutes per turning episode during the night (three in total) was appropriate in the circumstances. [22] In terms of daytime cares, Mrs Bay noted that Mr Kururangi had been allocated 11 hours of care in his 15 waking hours per day. Therefore there was only a matter of a few hours a day when carers were not being paid. She felt this was reasonable given that there were natural supports available when Mr Kururangi was praying, spending time on his bed with his grandchildren, eating shared family meals, having visitors, watching TV, or spending time with his wife as husband and wife rather than client and carer. 23] Mr Willson argued that ACC had reduced the assessor's role to a "time and motion study" and had taken away the decision making from an expertise in disability support, and retained that decision making to ACC. [24] He was also critical of the need for the reassessment in the first place, noting that Mr Kururangi's condition had not changed. [25] He raised the issue of the contribution that Mr Kururangi used to make to the running of the household prior to his accident. This included that he used to make his own lunches and did a good share of the housework. The household has lost his contribution to family income and the home and section. The contribution to the running of the home and property now needed to be "purchased". [26] Mr Willson was also critical of the fact that as at 2006 two assessments were undertaken. Under the new assessment process it is one. He submitted that if Mrs Kururangi was not available because she was working outside the home then the personal care hours would need to be increased. Mr Willson also said that because Mrs Kururangi is a full time employee of Panacea Health Care, then she is a paid carer and there should be full 168 hours per week for 24 hour cover. Part 2 [27] This focused on the powers of the Reviewer pursuant to s 145 of the Accident Compensation Act 2001. Section 145 says: 145 Review decisions: substance (1) In making a decision on the review, the reviewer must- (a) put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review; and (b) put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act (2) However, on the review of a decision revised by the Corporation under section 65(1), the Corporation must establish that the decision revised under that subsection was made in error. (3) The reviewer must- (a) dismiss the application; or modify the Corporation's decision; or (c) quash the Corporation's decision; or (d) direct the Corporation to make a decision within a time frame specified by the reviewer if the Corporation has not made the decision in a timely manner as contemplated by sections 54 and 134(1)(b); or (e) make the decision for the Corporation if it has not made a decision in a timely manner as contemplated by sections 54 and 134(1)(b). (4) If the reviewer quashes the Corporation's decision, the reviewer must- (a) substitute the reviewer's decision for that of the Corporation; or b) require the Corporation to make the decision again in accordance with directions the reviewer gives. (5) The reviewer may make a decision even though a person entitled to be present and heard at the hearing did not attend it unless, before the reviewer makes the decision,- a) the person gives the reviewer a reasonable excuse for the person's non-attendance; and (b) the reviewer considers that a decision should not be made until the person has been heard [28] It was submitted that reviewers are given expansive powers under this section. Yet since 2010 reviewers have been reluctant to make a substitute decision in the matter of hours of care. Thus it was submitted that ACC had persuaded reviewers that its discretion should not be interfered with in attendant care cases. This was because the Review and Tribunal system reside firmly within the executive of ACC. [29] In the present case the review had found that no reasonable person could make a decision to cut funded hours almost in half, yet did not substitute its own decision based on the evidence (I am assuming Mr Willson is referring to the first review). Part 3 [30] Here Mr Willson argued that estoppel operates in public law, relying on Robertson v Minister of Pensions [1948] 2 All ER 747 in HDV Limited v Price Commission [1976] ICR 170. From there Mr Willson submitted that Mr Kururangi's needs were stable over time and would only deteriorate. This supported a decision why his hours as at 2006 should not be changed. Thus there was a legitimate expectation and his hours should not change. "31] It was suggested that ACC gave no reason for wanting to reassess Mr Kururangi in 2011 as had been agreed in the individual rehabilitation plan decision. Thus Mr Willson argued that in doing so ACC made the decision to make a reassessment for an improper purpose. Behind that he referred to several policy documents which he said supported that ACC had deliberately targeted groups where there was the greatest potential for cost savings, namely clients such as Mr Kururangi. [32] Next it was argued that Mrs Kururangi and other family members had relied on the number of care hours to their detriment. This operates as an estoppel in terms of changing the attendant care and other hours agreed in 2006. Submissions on behalf of the Corporation [33] For ACC it was submitted that the issues on appeal can only be: [i] Whether the hours of attendant care decided by ACC were wrongful in administrative law terms. [if] Whether historical sums of entitlement are relevant. [ifi] Whether the process adopted on review is relevant in an appeal to the District Court. [iv] Whether legitimate expectation estoppel and other public law concepts play any part in the statutory context. [34] The relevant statutory provisions were ss 81, 84 and Clause 14 of Schedule 1 of the Act (which relate to social rehabilitation and hours of attendant care). [35] Mr McBride emphasised that care needs must be as the result of an injury as differentiated for example from age or disease. ACC is only liable to provide or contribute to the costs of the former (ACC v Howe [2013] NZACC 38). Clause 14 in Schedule 1 provides: In deciding whether to provide or contribute to the cost of attendant care, the Corporation must have regard to -... Clause 14 then sets out six criteria that the Corporation must have regard to. [36] Mr McBride submitted that the words "in deciding whether to provide" indicates that ACC had a discretion whether to provide or contribute to the costs of attendant care. He described this as cushioning against the consequences of an accident rather than necessarily meeting all of the costs. [37] The statutory scheme was that ACC had to provide key aspects of social rehabilitation if the conditions in s 81(4) are satisfied. Next there needed to be the objective assessment of need under s 84 which is mandatory. This is completed by a duly appointed assessor ($ 84(2)). It is a snapshot in time (s 84(3) providing permissive reassessment and mandatory reassessment if circumstances change. [38] Once the assessment is undertaken then ACC exercises a broad discretion as to funding taking into account Clauses 14 and 17 of Schedule 1. Clause 17 relates to home help. [39] However the decision of ACC is not a truly discretionary matter because it is informed by the material gathered in the objective assessment. The discretionary matters include the extent to which family members might reasonably be expected to provide attendant care - see Clauses 14 (d) to (f) of Schedule 1. [40] The decision of ACC dated 18 March 2013 relied on Mrs Bay's assessment. Having taken that into account, ACC exercised its discretion and the ultimate decision was more generous in terms of the hours assessed as being required by Mrs Bay. [41] On the issue of the appellant's disagreement with what Mrs Bay had to say in the assessment, Mr McBride referred to the case of Smith v ACC [2012] NZACC 233: ... 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. A similar comment was made by Judge Cadenhead in Anderson v ACC [2006] NZACC at 208. (See also Hoffinan [2007] NZACC 25. Judge Beattie at paragraphs [31] to [33] inclusive. [42] This was in response to the appellant's suggestions that ACC should not have embarked on the assessment at all, or that a different assessment at a different point in time rendered the contemporaneous assessment void ab initio. [43] It was submitted that the proper approach to appeals from the exercise of a discretion is set out in Kacem v Bashir [2010] NZSC 112. Also Alex Harvey Industries v CIR (2001) PRNZ 261 where the Court of Appeal said that the weighting, including the relative weighting of factors within the exercise of a discretion is a matter for the decision maker. [44] In terms of Mr Willson's challenge to the way in which reviews are conducted, it was submitted that the review process was not relevant to this appeal. This is because of the role of the District Court in terms of hearing an appeal is that described by the Court of Appeal in Wildbore v ACC [2009] NZCA 34. That included that where the District Court has a different opinion from that of the Reviewer it would be an error of law for the Court to defer to the Reviewer's assessment of the acceptability of and weight to be accorded to the evidence rather than forming its own opinion. Accordingly how matters were addressed at review is immaterial to the decision the District Court is required to reach on appeals. [45] Mr McBride went on to address the Reviewer's role notwithstanding what he said about this Court's role on appeal. He submitted that a Reviewer's role was to scrutinise ACC's decisions and did not have the power to make discretionary decisions for ACC. In Howard v ACC 2008/2101 Judge Ongley said: The Reviewer was not able to make a new decision in the substitution of the Corporation's exercise of discretion. The question on appeal is limited to whether the Corporation wrongly exercised its discretion. [46] This was supported by the powers on review in s 145 of the Act which enabled the Reviewer to dismiss the application, modify ACC's decision, quash ACC's decision, detailing what is to occur if the Reviewer quashes ACC's decision. At no stage does s 145 say that the Reviewer can replace ACC's decision with a new decision. [47] The approach contended for has been consistently applied by Review Officers and Reviewers and the appeal authority in the District Court under previous accident compensation legislation. [48] In this case the Reviewer could not have made his/her own decision because Reviewers are not qualified assessors under the Act. In the absence of an assessment there is no entitlement to attendant care. [49] Comment was also made about those aspects of Mr Willson's submissions that Reviewers are dictated to by ACC including that these were without any evidential or other basis or wrong. [50] Finally in relation to the submissions based on estoppel, legitimate expectation and abuse of power, Mr McBride submitted that these concepts are irrelevant in the ACC context. This is because the Act is a code. ACC only has those powers vested in it by parliament. [51] Mr Willson filed "rebuttal" submissions, which I have read. I identify two issues from that document that should be mentioned. They are: [i] The Reviewer had the material required to make a decision (namely the hours approved in 2006). Nothing further including no new assessment was required. Section 145(4)(a) provides the jurisdiction. [if] The need for a reassessment must be in the IRP (ISP) if a plan has been agreed (see s 81(4)(d). In this case one had been agreed. Discussion [52] I identify the issue in this case as follows. Was there any error in either the decision of ACC dated 18 March 2013 which provided for 89 hours of attendant care level one, two hours of attendant care level two and nine hours of home help (100 hours altogether) or the decision of Mrs Maher Reviewer dated 23 July 2013. [53] I intend to break that down into the following questions: [i] Was ACC entitled to reassess Mr Kururangi's attendant care and home help needs in 2011? [if] Was the review decision of Mrs Maher dated 21 December 2011 correct? [ifi] Was the subsequent decision of ACC dated 23 February 2012 correct? [iv] Was the decision of Reviewer Mr Woodhouse dated 26 September 2012 correct? [v] Was the decision of ACC dated 18 March 2013 which was based on the letter from Mrs Bay correct? [vi] Was the decision of the Reviewer Mrs Maher dated 23 July 2013 correct? The first issue [54] Here Mr Willson argued that the hours that ACC agreed to provide in 2006 should not have changed. He submitted that these hours were included in the individual rehabilitation plan (then called the individual service plan) and therefore it had the character of being a binding contract that could not be changed. Further this document did not contain any agreement to reassess the hours and therefore any reassessment under s 84 was incorrect. [55] The starting point is s 84(2) which says: (2) The Corporation may- (a) do assessments and reassessments, itself, by using appropriately qualified assessors employed by the Corporation; or (b) appoint and pay as many appropriately qualified assessors as it considers necessary to do assessments and reassessments; or (c) both. [56] Subsection (3) provides: (3) A claimant's need for social rehabilitation- (a) may be reassessed from time to time; and (b) must be reassessed if the Corporation considers that the claimant's condition or circumstances have changed [57] Section 75 of the Act requires the Corporation to prepare an individual rehabilitation plan in consultation with the claimant after the initial thirteen weeks post injury have passed. [58] Section 76 makes it clear that the Corporation is liable to provide social rehabilitation suitable and necessary having regard to the purposes of s 79 before an individual rehabilitation plan is agreed. This is obviously necessary to make sure that the appropriate support is put in place as soon as possible. This would be until an IRP could be completed. [59] Section 77 sets out the way in which the plan is completed and involves identifying the claimant's needs including what rehabilitation and other services might be required. [60] Section 78 makes it clear that an IRP must be updated from time to time. [61] Rehabilitation is defined in s 6 as a process of active change and support. I set it out in full. rehabilitation- (a) means a process of active change and support with the goal of restoring, to the extent provided under section 70, a claimant's health, independence, and participation; and (b) comprises treatment, social rehabilitation, and vocational rehabilitation. [62] Thus the note under s 78 in Brookers online provides: Since rehabilitation is defined in s 6 is a process of active change and support, the individual rehabilitation plan may be reviewed from time to time to ensure that the objectives of rehabilitation continue to be met [63] Section 79 provides that the purpose of social rehabilitation is to assist in restoring the claimant's independence to the maximum extent practicable. [64] I do not accept Mr Willson's submissions that an individual rehabilitation plan (formerly ISP) is a contractual document. In my view the sections of the Act which deal with an IRP make it clear that it is a fluid document described by Mr McBride as a working document. It is in the interests of both parties, namely the Corporation and the claimant, that it is able to be reviewed from to time. This is because the claimant's condition may improve or worsen, possibly as a result of the rehabilitation being provided. It is important that the claimant's needs are assessed from to time to ensure that the correct supports are put in place including those that the Corporation is obliged to put in place. [65] It seems to me that what is likely to have happened in this case is that once the new assessment tool was developed, the Corporation decided to reassess Mr Kururangi against that new assessment tool. While Mr Willson might argue that this was a strategy to decrease the amount of money the Corporation was paying for care hours for Mr Kururangi, it must equally be recognised that there was always the possibility that the new assessment tool might result in an assessment where the outcome was that more hours or more types of rehabilitation were required. An assessment had not been completed for some five years. [66] I therefore find that ACC was entitled to reassess Mr Kururangi's attendant care and home help needs as at 2011. Second issue [67] This involves the first decision of Mrs Maher dated 21 December 2011 Review 220242). I have read and considered this decision. It is 18 1/2 pages in length. In my view Mrs Maher correctly identified the issue which was: Whether ACC was correct to reduce Mr Kururangi's allocated hours of attendant care support, ACC advised Mr Kururangi on 1 August 2011 that his ongoing attendant care level of one hour would be 63 per week and home help to 8 hours per week. On 29 September 2011, ACC issued a further decision increasing the attendant care hours by 21 hours a week to provide for 3 hours per night to allow Mr Kururangi to be turned. Mr Kururangi accepts the 21 hours per week allocated for night turns, but disputes the decision of 1 August 2011 reducing the overall attendant care hours provided [68] Mrs Maher went through the relevant history involving Mr Kururangi's accident and injuries and resulting medical conditions. She also considered the September 2006 assessment which provided for 112 hours of attendant care per week and the May 2011 support needs assessment (SNA) which recommended 63 hours of attendant care level one and eight hours of home help. [69] Mrs Maher heard from Mr Kururangi's advocate and ACC and set out the relevant law in relation to attendant care decision. [70] Mrs Maher said: ...there is simply no adequate explanation or rationale presented by the assessor for the reduction in hours. 71] It was also noted that Mr Kururangi's health was deteriorating. Thus the family had to be more available to attend to his needs. In the intervening years between 2006 and 2011 the family dynamic has changed. Mr Kururangi's son had moved overseas and was no longer available to help. His two daughters now lived independently and had their own lives to lead. [72] Mrs Maher concluded that ACC had not structured a correct balance between its obligations and those that needed to be taken into account in terms of the family. [73] The decision of Knighton (65/2005) was noted in the decision. This case is authority for the proposition that a sensible balance needs to be found between family responsibilities and the responsibility of ACC under the Act. [74] In the case of Anderson (208/2006) the Court said that where there is a dramatic reduction in the number of hours there needed to be an adequate explanation or rationale. [75] Mr Willson argued that Mrs Maher could have made the decision herself based on the information she had, namely the hours approved in 2006. Putting to one side whether or not Mrs Maher had the authority to do that, it is clear from her review decision that the circumstances of the family had changed. A son who used to help was no longer living in New Zealand. Two daughters who lived at home and were available on the spot to assist had moved to live independently. Mr Kururangi's health was deteriorating. In those circumstances it seems to me that the Reviewer did exactly the right thing by referring the matter back to the Corporation for reassessment. [76] That leaves the issue of whether or not the Reviewer could have decided the matter without reference back to the Corporation. That would have assumed a situation where the needs of Mr Kururangi and family configuration available for natural support had not changed. [77] This leads into the issue about what is in the assessment. It seems to be the thrust of Mr Willson's argument that the new assessment process is designed to assist ACC's desire or a political desire to reduce the costs of the scheme by providing less attendant care hours. [78] The word 'assessment' is not defined in the Act. But what needs to be taken into account in the assessment is prescribed. There are a number of factors set out in s 88(4) of the Act. They include: [a] The level of independence before the injury; [b] The level of independence after the injury; [c] The limitations the claimant has as a result of the injury; [d] The kinds of social rehabilitation necessary to minimise those limitations; [e] The outcome that would be achieved by providing particular social rehabilitation; [f] Alternatives and options for providing social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost-effective way; [g] Any social rehabilitation that may reasonably be provided to assist the claimant to become vocationally independent; [h] The geographic location in which the claimant lives; [i] In the case of a reassessment whether any item previously provided needs replacing; [] Changes in the claimant's conditional circumstances since the last assessment was undertaken. 79] Section 84(2) provides that assessors must be appropriately qualified. [80] If I understand Mr Willson's arguments correctly he is concerned that the current process for assessment and possibly what the assessors say is weighted in favour of ACC in some way. If that is the proposition, then the Court would need evidence from a suitably qualified expert explaining why the assessment process does not comply with the requirements of the Act. Without such evidence, this analysis is simply not possible. [81] I decide this issue in favour of the Corporation. The third issue [82] This concerns the subsequent decision of ACC dated 23 February 2012. This letter advised Mr Kururangi that he was entitled to 100 hours care/home help per week. It was based on the assessment of Mrs Bay (I pause here to say that Mrs Bay's assessment appears to justify the concerns Mrs Maher had at the first review). [83] Here ACC has taken on board the assessment by Mrs Bay and added in an extra 30 minutes per turn per night (1 12 hours per night) and thus increased the number of hours from what she assessed, an additional 10 1/2 hours. [84] This brings into focus the issues raised by Mr McBride which are described in this decision at paragraphs [35] - [38] herein. [85] Mr Willson argued that ACC had reduced the assessor's role to a time and motion study (see paragraph [231). [86] Clause 14(d) - (f) of Schedule 1 is relevant here. In deciding whether to provide or contribute to the cost of attendant care, the Corporation must have regard to- . . (d) the extent to which household family members or other family members might reasonably be expected to provide attendant care for the claimant after the claimant's personal injury; (e) the extent to which attendant care is required to give the household family members a break, from time to time, from providing attendant care for the claimant; f) the need to avoid substantial disruption to the employment or other activities of household family members. [87] The first point is that it is the Corporation that is required to undertake this task and not part of the assessor's responsibility. In my view there is a statutory expectation that family members will provide at least some of the attendant care without financial assistance. The only case where this will not occur is when that will be unreasonable. [88] In Mr Kururangi's case three separate people wake in the night to turn him. The actual care involved in turning him takes approximately 30 minutes and an additional 30 minutes was provided to get up to undertake this task and get back to bed. By the family arranging three people to do this, it means that a family member's sleep is only broken once during the night. Furthermore in Mrs Bay's assessment she stated that the family were happy with this allocation of time. [89] I can see no basis to criticise the addition of the 10 1/2 hours on top of the needs assessed by Mrs Bay. Indeed there is nothing specific in Mrs Bay's assessment that has been attacked by Mr Willson except to say that it is less hours than the 2006 hours allocated. [90] One of the factors that has been raised is that Mr Kururangi's condition is not as good as it was in 2006. I have already referred to the weight gain which may or not have impacted on the development of diabetes and sleep apnea. Mr Kururangi is now over the age of 70 and as would be expected the fact of his aging is likely impacting on his health generally. The Act is clear that it is only attendant care as a result of the covered injury that the Corporation is required to pay for. [91] I decide this issue in favour of the Corporation. The fourth issue [92] Was the decision of Mr Woodhouse correct? The powers of the Court on appeal are those set out by the Supreme Court in Kacem v Bashir [2010] NZSC at 112 at paragraph [32] where the Court said: ...in that kind of case the criteria for a successful appeal are stricter: (1) Error of law or principle; (ii) Taking account of an irrelevant consideration; (ifi) Failing to take account of a relevant consideration; (iv) The decision is plainly wrong... [93] Also relevant is the decision of Wildbore v ACC where the Court of Appeal said in CA230/08: The District Court is required to come to its own conclusion on its assessment and evaluation of the evidence, and the merits generally. Where the District Court has a different opinion from that of the Reviewer, it would be an error of law for it to defer to the Reviewer's assessment of acceptability of, and weight to be accorded, to the evidence rather than forming its own opinion... [94] Mr Woodhouse found that the Corporation considered that Mis Bay's assessment was incorrect in respect of night-time care. His view was that ACC should have reflected those concerns back to the assessor for comment before making a decision. [95] As I have already said, it is the Corporation that has to make the judgment about what can reasonably be expected of family members. There is no indication in Mrs Bay's report that Mr Kururangi has to be observed when he is asleep. She did point out that he needed to be turned three times throughout the night. [96] In my view whether or not night-time supervision or additional attendant care hours were required to deal with the night-time issues was within the purvey of the Corporation. For this reason Mr Woodhouse's decision was wrong. The fifth issue [97] The next issue is the decision of ACC dated 18 March 2013. This restated the earlier decision of 23 February 2012. I have already stated in my view this decision was correct. The sixth issue [98] Was the last review decision of Mrs Maher dated 23 July 2013 correct. Although I have found Mr Woodhouse's decision was wrong, I agree with the process that he suggested. It resulted in Mrs Bay reconsidering her assessment and reporting accordingly. She reported that she did not wish to change anything in her initial report. [99] Mrs Maher's second review decision is thorough. She concluded that ACC had exercised its discretion appropriately. She relied on a decision of Judge Ongley in Omara 1/2013 which sets out the administrative law type considerations that have more recently been reflected in Kacem v Bashir. Mrs Maher was of the view that she must find an error of law. [100] She noted that at the hearing Mr Kururangi's family had said they agreed the three hour provision of care was reasonable for overnight turns noting that Mr Willson's submissions for 24 hour cover was therefore not the same as the family's expressed views. She noted that Mrs Bay was of the view that disruption to the sleep of caregivers was a matter for ACC and not for her. Thus the real dispute was the unfunded care during the day. Again she referred to Mrs Bay's assessment that allowed for 11 hours per day of care for Mr Kururangi 15 hours per day waking hours. The question was whether that was reasonable and decided that it was. Mrs Maher recorded Mrs Bay's report had been peer reviewed by Deborah Andrews the Director of Professional and Paediatric Rehabilitation Services. [101] I can find nothing to fault in Mrs Maher's decision. Other matters [102] I have not covered some of the issues that Mr Willson has raised. In essence these are his arguments in part 3 in relation to estoppel, legitimate expectation and conducting the assessment for an improper person. The latter I have dealt with (see paras [64] - [66]. The issue about estoppel and legitimate expectation essentially amount to whether or not there should be a change in the hours from the two 2006 assessments and decision. I have dealt with this issue in the same paragraphs [64] - [66]. [103] That leaves the issue of whether or not these concepts have any place in appeals of this nature. I agree with the submissions made by Mr McBride that the Act is a code. ACC only has the powers vested in it by Parliament. If it has breached its powers and duties under the Act in any particular way, then that can be raised in the context of a review or appeal. Mr Willson has done this in relation to specific issues (for example whether or not there could be a further assessment in 2011). [104] The appeal is dismissed. [105] If the parties are unable to settle the matter of costs as between themselves they may file memoranda within 21 days. I will decide the matter on the papers. I'll lanninghe P A Cunningham. District Court Judge