Aly v NSW Trustee and Guardian (GD)

[2013] NSWADTAP 23

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ALY v NSW Trustee and Guardian (GD) [2013] NSWADTAP 23

Hearing dates:

24 April 2013

Decision date:

29 May 2013

Before:

Judge K P O'Connor, President
L Goodchild, Judicial Member
Z Antonios, Non-judicial Member

Decision:

1. Appeal allowed.

2. Decision of Trustee varied to authorise the appellant to manage the balance of his disability support pension after deduction of the hospital accommodation fee.

Catchwords:

PROTECTED PERSON - NSW Trustee revoked authority to manage income - Affirmed by Tribunal - Appeal - Authority restored in part

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Health Services Act 1997
NSW Trustee and Guardian Act 2009
Social Security Act 1991 (Cth)

Cases Cited:

ALY v NSW Trustee and Guardian [2012] NSWADT 255

Category:

Principal judgment

Parties:

ALY (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

In person (Appellant)
Ms R Stormont, Legal Officer (Respondent)

File Number(s):

139011

 Decision under appeal 

Citation:

ALY v NSW Trustee and Guardian [2012] NSWADT 255

Date of Decision:

2012-12-05 00:00:00

Before:

General Division

File Number(s):

123285

reasons for decision

1. The NSW Trustee is the appellant's financial manager, as a result of orders of the Guardianship Tribunal made under the Guardianship Act 1987 dating from May 2001.

1. The appellant was born in 1943. He has been married and has a son who is now about 10. He and his wife separated in 2004, and his son is in the care of the Minister for Family and Community Services. The appellant has suffered from a mental illness for many years. He is presently receiving a Disability Support Pension of $1,862.80 per month.

1. The Trustee has power to give managed persons authority to manage their own funds as appropriate: see s 71(2) of the NSW Trustee and Guardian Act 2009. The appellant held such an authority until the Trustee withdrew it on 11 July 2012 (see s 71(3)). The appellant applied to the Tribunal for review of the decision (see s 71(6)). His application was unsuccessful: ALY v NSW Trustee and Guardian [2012] NSWADT 255 (5 December 2012). He now appeals.

1. The appellant has no other assets or income. Since May 2011 he has been in custody as an involuntary patient in a forensic hospital. This followed his arrest for a criminal offence in 2009. He was in remand at Silverwater until 31 May 2011 when he was found not guilty by reason of mental illness.

1. In his first weeks he was in acute care. Since 11 July 2011 when acute care treatment ended, he has been liable to pay hospital accommodation fees. He refused to pay those fees with the result that by July 2012 he had incurred a debt of over $15,000. That led to the Trustee's decision to withdraw the authority to manage his funds, along with concern over his preparedness to sign withdrawal slips brought in for him by his former wife when she visited, sometimes with his son.

1. The Tribunal gave its assessment at [7] and [8] as follows:

7 The decision to withdraw ALY's authority to manage his pension was made under s 71(3) of the NSW Trustee and Guardian Act 2009. When making decisions under that provision, the Trustee must observe the principles in s 4 of the Guardianship Act 1987 including the principle that "the welfare and best interests" of the subject person "should be given paramount consideration". Generally speaking, it is in the best interests of a person to be self reliant in relation to their financial affairs. But it is also important that a subject person be protected from exploitation.

8 I am not satisfied that if ALY is authorised to manage his pension, he will pay the accommodation fees. While he says he will pay them, he still does not believe that he should have to pay those fees. If ALY were willing to pay the fees, he would have done so before now. Secondly, I am not satisfied that ALY would stop signing blank withdrawal forms and giving them to his ex wife. He was not aware that she had withdrawn his entire pension from his account over at least a 6 month period. He assumed that his ex-wife was using the funds for their son's education but given that he is in the care of the Minister for Family and Community Services, that seems unlikely.

1. An appeal may be made, as of right, on a 'question of law', and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997, s 113(2).

1. The appellant's notice of appeal was filled out by him personally. It does not draw a distinction between questions of law and other matters. In cases involving protected or managed persons, Appeal Panels have not been inclined to insist that they make this distinction. If the dispute is in relatively narrow confines (as here) we have simply proceeded to hear the appellant in a relatively informal way, and reconsider the Tribunal's decision.

1. The discretion given to the NSW Trustee is a broad one, to do whatever is 'appropriate' in the circumstances. Similarly the ADT's discretion on review is a broad one, to make the 'correct and preferable' decision. The Tribunal's decision was clearly one within the range of decisions open to it.

1. The appellant participated in the appeal hearing by telephone from a ward at the hospital, and he had with him a social worker who works at the hospital, Mr Ibrahim Kaweesi.

1. The Trustee advised us that her office has been successful in obtaining a waiver of past arrears, but it remained necessary to manage the appellant's income to avoid any repetition of the problem.

1. In the words he wrote in his notice of appeal and in what he said to us at hearing, the appellant emphasised that he did not regard his former wife as having exploited him. He said in the notice of appeal that 'I gave her money to go to Hong Kong with our little son [name] and also gave her money so the state would not steal it.' It will be seen that the Tribunal reached a different view especially after forming the view that he did not appreciate that his entire pension had been depleted in this way for a six month period, going well beyond the costs mentioned.

1. He also repeated his view that had he been convicted and gone to gaol, he would not have to pay for his care. He sees himself as worse off financially as a result of being found not guilty by reason of mental illness. He believes that it is unfair to visit hospital fees upon him when he is being held against his will.

1. The Social Security Act 1991 (Commonwealth) s 1158 provides that certain social security payments that include the disability support pension are not payable when a person is in gaol or undergoing psychiatric confinement because the person has been charged with an offence. So it is not the case that the appellant would be better off if he had been convicted and gone to gaol. While it is true that he does not have to pay for his care in gaol, he would not be receiving any disability pension.

1. At the hearing, the appellant stated that whilst he thinks he should not be liable to pay his hospital fees, he had received a letter from the Minister of Health who told him that he is required to pay pursuant to the Health Services Act 1997. He said he would now make sure he paid the fees. But, as we understood his submissions, he wanted to have back full control of his pension, and manage it himself. He stated that he had managed his own pension for well over 30 years.

1. Ms Stormont, for the Trustee, reiterated the concerns which had led the office to revoke the authority.

1. We accepted, in the circumstances, that a restriction needed to apply to the fees component. But we doubted whether it was necessary to be that strict with the balance of his money. He still had left about $400 a fortnight ($1450 a fortnight versus $1862 pension). She indicated that the office saw it as desirable, and in the appellant's interests, that the balance not be unduly depleted. It would help him if he had some money of his own to fall back on when he is released from hospital back into the community.

1. The appellant expressed a wish to be seen as loving and kind to his ten year old son. He would like to decide how his money is used in that regard.

1. At present he can only do that following a request to the Trustee. If too much emphasis is given to keeping aside money for his release, he will have little or no ability to act as he would prefer. There is nothing in the material, nor was Ms Stormont able to assist in this regard, as to when the appellant might be discharged from custody. In these circumstances it seems to us no great emphasis should be given to the need to set aside a sum for use on departure.

1. At the appeal hearing, Mr Kaweesi did refer to the problem in the past of the appellant's wife bringing in withdrawal slips, he signing them and the wife, in that way, having relatively unfettered access to his funds. We recognise that that may continue to be a problem, but it may be that there can be some change in procedures which prevents her from bringing in blank withdrawal slips.

1. Allowing a managed person some freedom of action in relation to their funds affords some dignity to that person, and is in keeping with the principle that the least restrictive interventions should be made into the lives of people with disabilities.

1. We consider that the matter can be resolved by varying the order of the NSW Trustee such that the appellant's authority to manage his pension is available after the withdrawal from that pension each month of the payment of the accommodation fee at the institution where he is detained.

Order

1. Appeal allowed.

2. Decision of Trustee varied to authorise the appellant to manage the balance of his disability support pension after deduction of the hospital accommodation fee.

Decision last updated: 29 May 2013