Barnes v State of Victoria
[2015] VSC 340
•14 AUGUST 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06775
| PHILIP BARNES | Plaintiff |
| v | |
| THE STATE OF VICTORIA | First Defendant |
| and | |
| THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Second Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2 JUNE 2015 |
DATE OF JUDGMENT: | 14 AUGUST 2015 |
CASE MAY BE CITED AS: | BARNES v STATE OF VICTORIA |
MEDIUM NEUTRAL CITATION: | [2015] VSC 340 |
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JUDICIAL REVIEW – Application for relief in the nature of mandamus – The nature of the obligation assumed by the Secretary of the Department of Health and Human Services under s 49 of the Disability Act 2006 after agreeing to a request for disability services – Right of a person with a disability to complain to the Disability Services Commissioner – The application of a liberal interpretation to legislation intended to benefit people with disabilities.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Ms K Foley | Legal Services, Department of Health and Human Services |
HIS HONOUR:
This is an application in which the plaintiff seeks orders in the nature of mandamus directing the second defendant (‘the Secretary’) to provide to the plaintiff the disability services which:
(a) he requested under s 49(1) of the Disability Act 2006 (‘the Act’); and
(b) it is alleged, on 2 September 2014, the Secretary agreed to provide under s 49(2) of the Act.
Background
The plaintiff was born in 1950. In March 1982, which was the year of his marriage, he was diagnosed with Primary Progressive Multiple Sclerosis (’MS’).
His initial symptoms were numbness in his left hand, and pain and weakness in his arm. By 1987, the numbness and weakness had progressed to his left leg and by 1991 he needed walking aids.
In 2003, he ceased driving a motor vehicle, although he continued to work full-time under difficult and stressful conditions for a further eight years.
In May 2011, as a result of a fall, he suffered a fractured leg, a fracture to the arch of his foot and a twisted neck. As a result, he was hospitalised for 22 months, which resulted in the collapse of his business.
On 29 September 2011, a Target Group Assessment was conducted by the Department of Health and Human Services, previously called the Department of Human Services (’the Department’), which confirmed the plaintiff’s eligibility for disability services under the Act.
In October 2011, the plaintiff made an Individual Support Package (‘ISP’) application to the Department, which was approved in May 2012. In August 2012, he made an additional application to the Department for assistance to secure physiotherapy and training at home to aid his mobility, which the Department approved in December 2012. As a result of the programs put in place by the ISP, the plaintiff was able to return home from hospital in February 2013. His initial ISP funding was $112,000 per annum but that has since increased, in line with indexation, to $114,211.
Since February 2013, the plaintiff has lived at his home and there is currently no part of his body that is free from the effects of MS with the exception of his cognitive function. For the most part, he is confined to a wheelchair and he is incontinent. He requires substantial assistance for toileting, personal hygiene, and the preparation and consumption of meals. He suffers from optic neuritis, which results in poor vision and sometimes no vision at all. He has currently progressed to level 8 on the Kurtzke Expanded Disability Status Scale in which level 9 is being bed bound and level 10 is death caused by MS.
On 3 March 2014, the plaintiff made an application to the Department under s 49(1) of the Act (’the Request’) requesting an increase in his ISP to a total of approximately $250,000 plus a one-off grant of about $23,000 for a new wheelchair. The application set out the basis for the Request which, in summary, was that the plaintiff’s current ISP was not adequate because of the deterioration of his condition consequent on the progression of the MS. The application was in the form prescribed by the Department.
On 14 May 2014, Ms Monique Balmer, Case Manager, Disability Support Register (‘DSR’) Registration, met with the plaintiff at the Department’s Box Hill office and, the plaintiff deposes, advised him that no further assessment of his condition was necessary. Ms Michelle Nolan, Team Leader of Disability Information and Triage & DSR Registration for the Department, deposed that the Secretary agreed to the plaintiff’s Request on the same day (it is unclear whether it was before or after the meeting) pursuant to s 49(2)(a) of the Act and the Request was registered on the DSR. However, the plaintiff deposes that he was not informed of the agreement.
By letter dated 22 May 2014 to Ms Gill Callister, the Secretary, the plaintiff stated as follows:
On 24 February 2014 I made a request to the Department of Human Services (DHS) for disability services pursuant to section 49(1) of the Disability Act 2006 (the Act). On 17 March 2014, I received notification from DHS that I would ‘receive written advice of the outcome of the request for support within four weeks’. To date I have received no positive response to my request and therefore in accordance with section 49(2) of the Disability Act 2006 I assume that my request has been refused. In accordance with section 49(4) of the Disability Act 2006 DHS must advise me as to the reason that my application has been refused.
In order to confirm that I am a person with a disability pursuant to the Act, please find attached a report from my neurologist Dr Ann French date (sic) 12 February 2014 for your information and assessment. Pursuant to section 50(1) of the Act I hereby request that you confirm that I am a person with a disability. Pursuant to section 50(6) of the Act I request confirmation in writing within 14 days that I am a person with a disability.
By letter dated 29 May 2014 to the plaintiff, Ms Nolan stated as follows:
Recently we have received updated information in relation to your currently registered Disability Support Register (DSR) for Shared Supported Accommodation (SSA).
Following on from your meeting with Ms Monique Balmer, Disability Client Services, on 14 May 2014, you advised that you no longer wanted to be considered for SSA. I can confirm for you that your request for SSA has now been removed and your request for additional Individual Support Package support is now registered.
Please note that registration on the DSR does not automatically result in the allocation of a resource, however you will continue to be considered for all suitable resources as they become available. I have enclosed an information sheet which outlines how supports are allocated for your reference.
As your circumstance changes over time I encourage you to inform Disability Information & Triage of this to ensure our information remains current. The Disability Information & Triage team can be contacted during business hours…
By a letter dated 2 June 2014 to the plaintiff, the Secretary replied to the plaintiff’s letter of 22 May 2014 stating:
Thank you for your letter of 22 May 2014 regarding your concerns in relation to your request for disability services.
I have asked Ms Christina Asquini, Executive Director, East Division to respond to the issues you raise in your letter. In the interim should you wish to discuss the matter further please contact Ms Linda Shields, Acting Director, Client Outcomes and Service Improvement …
Thank you for raising this matter with me.
On or about 30 June 2014, the plaintiff made an application to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of the failure by the Department to agree to, or refuse, his request under s 49 of the Act, and for a review of the failure by the Department to respond to his request under s 50 of the Act.
On 21 August 2014, VCAT directed as follows:
(a)By 2 September 2014, the Department shall provide to the plaintiff a letter clarifying its position in respect of the plaintiff’s 3 March 2014 application for services made under s 49(1) of the Act.
(b)By 3 October 2014, the plaintiff shall write to VCAT to advise whether he seeks a further hearing and if so, on what basis.
By a letter dated 2 September 2014 to the plaintiff, Ms Nolan stated as follows:
I am writing to you regarding your application to the Victoria Civil Administrative Tribunal (VCAT), requesting a review of the Department of Human Services (DHS) decisions relating to your eligibility for Disability Services support and your application for services. At the directions hearing on 21 August 2014, the VCAT Member directed the DHS to provide you with written clarification regarding these matters.
I can confirm that DHS Disability Services agrees to the request outlined in your application dated 3 March 2014 in accordance with section 49(2) of the Disability Act 2006, and have placed the need for the additional individual support package on the Disability Support Register (DSR). As you are aware, registration on the DSR does not result in the automatic allocation of a resource, however you will be considered along with others who have a registered need for this support.
I am also able to confirm that DHS Disability Services completed a Target Group Assessment with you in September 2011 and determined that you are a person who has a disability in accordance with section 50 of the Disability Act 2006.
If you have any further queries regarding any of the details in this letter, please contact me …[1]
[1]Emphasis added.
On 20 October 2014, the plaintiff withdrew his VCAT application.
By letter dated 31 October 2014 to Ms Nolan, Wilmoth Field Warne, the then solicitors for the plaintiff, stated as follows:
We refer to your letter dated 2 September 2014 to our client, Philip Barnes and in particular to paragraph 2, in which DHS Disability Services agreed to the request outlined in our client’s application dated 3 March 2014.
Our client has instructed us to request that you provide within fourteen (14) days from the date of this letter, the services in accordance with the agreement, failing which our client will take such action as he may be advised including applying to the Supreme Court for the appropriate Orders compelling you to provide these services.
In the event that the services are not to be provided in accordance with the agreement under s 49(2) of the Disability Act, we ask that written reason be provided for the failure to provide them.
By letter dated 21 November 2014 to Wilmoth Field Warne, Ms Kirsty McIntyre, Director, Legal Services of the Department responded as follows:
We refer to your letter dated 31 October 2014 and our previous correspondence to Mr Barnes regarding his application for ongoing disability support submitted on 3 March 2014.
We are instructed that your client is already in receipt of an Individualised Support Package (ISP) of $112,000 per annum, and that his application relates to an increase in funding.
We are further instructed that Disability Services agreed to your client’s application for additional support and placed the need for the additional individual support package on the Disability Support Register (DSR).
As previously advised in writing on 16 June 2014 and 2 September 2014, registration on the DRS does not result in an automatic allocation of funds. When funds become available, a Panel will sit to determine who is allocated the funds and Mr Barnes will be considered along with others who have registered a need for support.
We note the issue of the allocation of funds was ventilated during the course of the Victorian Civil Administration Tribunal (VCAT) proceedings and your client’s VCAT application was withdrawn on 20 October 2014.
Disability Services would be happy to meet with your client again to explain the process however we do not anticipate any changes in your client’s current ISP in the near future.
If you have any further queries, please contact Michelle Nolan, Team Leader…
The claim
On 19 December 2014, the plaintiff filed this motion which in essence claims that by reason of the acceptance, in its letter of 2 September 2014, of the plaintiff’s Request, the Department is obliged to provide these services pursuant to s 49 of the Act.
Statutory regime
The objectives of the Act are set out in s 4 as follows:
The objectives of this Act are to—
(a)advance the inclusion and participation in the community of persons with a disability;
(b)promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;
(c)facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;
(d)promote and protect the rights of persons accessing disability services;
(e) support the provision of high quality disability services;
(f)make disability service providers accountable to persons accessing those disability services;
(g)ensure the efficient and effective use of public funds in the provision of disability services.
Section 5 of the Act sets out the principles and the plaintiff referred to the following parts of subsection (3) which provide that:
(3) Disability services should—
…
(b)be flexible and responsive to the individual needs of persons with a disability;
(c)maximise the choice and independence of persons with a disability;
…
(f)as far as possible be provided in a manner so that a person with a disability need not move out of his or her local community to access the disability services required;
(g)be of high quality and provided by appropriately skilled and experienced staff who have opportunities for on-going learning and development;
(h)consider and respect the role of families, carers and other persons who are significant in the life of the person with a disability;
(i)acknowledge the important role families and carers have in supporting persons with a disability;
(j)acknowledge the important role families have in assisting their family member to realise their individual physical, social, emotional and intellectual capacities;
(ja)acknowledge the important role carers have in assisting the people they care for to realise their individual physical, social, emotional and intellectual capacities;
(k)where possible strengthen and build capacity of families and carers who are supporting persons with a disability.
The role of the Secretary, for the purposes of the Act, is set out in s 8 of the Act and includes ‘to plan, develop, provide and fund or purchase comprehensive services, programs and initiatives for persons with a disability’.[2] Pursuant to s 8(2), the Secretary's functions include, among other things:
[2]The Act s 8(1)(a).
(a) ‘to develop policies for disability services’;
(b) ‘to develop and publish criteria to enable priority of access to disability services in a fair manner’; and
(c) ‘to determine priorities in relation to policy development, resource allocation and the provision of disability services’.[3]
[3]The Act ss 8(2)(c)-(e).
Further, the Secretary:
(a) must keep a register of disability service providers[4] (which expression is defined to mean the Secretary or a person or body included on the register[5]); and
(b) is empowered to allocate funds to a person who has entered into a contract for the provision of services to persons with a disability to be used for the purposes, and subject to the conditions, considered by the Secretary to be appropriate.[6]
[4]The Act s 46(1).
[5]The Act s 3.
[6]The Act ss 9, 10.
The Act provides for the appointment of a Disability Services Commissioner (‘the Commissioner’) whose functions include the investigation of complaints relating to disability services.[7]
[7]The Act ss 14, 16(a).
Part 4 of the Act provides for the provision of disability services and includes a provision for the Secretary to maintain a register of persons as disability service providers.[8]
[8]Pursuant to s 3 of the Act ‘disability service provider’ means the Secretary or a person or body registered on the register of disability service providers.
Division 2 of Part 4 of the Act provides for ‘Assessing Disability Services’ and, critically, s 49 provides as follows:
49 Request for disability services
(1)A person with a disability or a person on behalf of a person with a disability may request disability services from a disability service provider.
(2)If a disability service provider receives a request under subsection (1), the disability service provider may—
(a) agree to the request; or
(b) refuse the request.
(3)For the purpose of making a decision on a request under subsection (1), the disability service provider may require—
(a)the person making the request to provide more information;
(b) the person with a disability to undergo an assessment.
(4)If a disability service provider refuses a request under subsection (2)(b), the disability service provider must within 14 days of deciding to refuse the request advise in writing the person making the request—
(a)that the request has been refused and the reason for the refusal; and
(b)if the reason for the refusal is that the disability service provider is of the opinion that the person for whom the disability services are requested does not have a disability, that the person in respect of whom disability services have been requested has a right to have the issue of whether the person has a disability decided by the Secretary.
(5)If a disability service provider agrees to provide disability services without requiring an assessment of the person, the provision of disability services to the person is not of itself to be taken to be evidence that the person to whom the disability services are provided is a person with a disability.
As contemplated by s 49(4)(b) of the Act, s 50 provides for the Secretary to decide whether or not a person, whose request for disability services has been refused on the grounds of a lack of disability, does have a disability.
The plaintiff’s submissions
The plaintiff submitted that the statutory liability of the Secretary arises out of its agreement pursuant to s 49(2)(a) of the Act; in a manner akin to contract. It was submitted that a plain reading of the statute was that that the Secretary, by agreeing to the request for disability services, was undertaking to provide the requested services. In support of the submission, it was contended as follows:
(a) It could not have been the intention of the Parliament that the disability service provider, in this case the Secretary, could agree to the provision of the services; but in fact not be under any obligation to provide the services until it so decided on the basis of its own procedures; or possibly never.
(b) Although there was no timeframe specified for the provision of the services, it should be inferred that the services would be provided within a reasonable time.
(c) On the disability service provider’s agreement, the obligation would be to provide the services requested and, if it intended to provide some lesser quantum of services, it would be able to refuse the request under s 49(2)(b); but suggest that a request for some lesser quantum of services would be acceptable.
(d) The plaintiff’s proposed interpretation would be consistent with the objectives and principles of the Act, particularly accountability and flexibility, because a refusal required the disability service provider to advise the applicant in writing of the reason for the refusal. On the defendants’ interpretation, after agreeing to the supply of disability services, the method of determining who would and who would not be provided with services would not be transparent. Such a lack of transparency would result in the applicant having no effective recourse for a failure to provide disability services, which was not consistent with the objectives and principles of the Act.
(e) The concept of the Secretary’s agreement resulting in nothing more than an entry of the plaintiff’s request onto a register was not reflected anywhere in the Act.
The Defendants’ submissions
Ms K Foley, who appeared as counsel for the defendants, referred to the statutory regime, in substance as referred to above, and to the following policy documents and guidelines, which it was contended were relevant to the issues in the proceeding:
(a) The Disability Services Access Policy (‘the Policy’), which applies to all disability service providers in making decisions regarding access to disability services. It also provides information to persons with a disability about the process of accessing disability services. At section 7.6.1, the Policy states:
Agreeing that a person is within the target group for disability services does not necessarily mean the person will be able to access the requested disability support. Following a decision that a person is within the target group, they must also be considered a priority for access.
A flow-chart at page 17 of the Policy explains, among other things, that if an applicant’s request has been accepted, but a decision on priority of access finds that disability support is appropriate but unavailable, that person will be ’put on a register for support, or is referred to other disability service provider’.
(b) The Disability Services Access Policy Implementation Guide (‘the Implementation Guide’), which assists disability service providers in implementing the Policy. Section 10 of Part One of the Implementation Guide deals with ‘Determining priority of access’. This section sets out a range of factors that disability service providers need to consider when determining priority of access, including ‘priority of access indicators’ developed to assist providers in making decisions about access.
(c) The Disability Support Register Guidelines (‘the Guidelines’), which are followed by the members of the DSR Registration Team in performing their functions. Appendix 1 of the Guidelines includes a flow-chart of the DSR registration process. It states, among other things, that once a person’s request for support is registered on the DSR the ’person is considered for resources as they become available’.
Accordingly, on behalf of the defendants, Ms Foley submitted as follows:
(a) The language of s 49(2) of the Act was inconsistent with the plaintiff’s construction because it provided for the disability service provider to ‘agree to the request’, not to ‘agree to provide disability services’.
(b) The agreement of the disability service provider under s 49(2)(a) to a request for disability services did not mean that there was funding available to enable such services to be provided. The Secretary relied upon the affidavit of Ms Nolan sworn 17 March 2015, in which she deposed that, when an application was made, the request was (pursuant to section 6 of the Guidelines) ‘registered’ on the DSR or ‘not endorsed’. Registration of a request or application (which was what had occurred in the plaintiff’s case) meant that the details and type of support requested were placed on the DSR. A decision was then made as to whether or not to assign the registered application priority status and funding would only be allocated when available. The Guidelines set out the process of how the funding would be allocated.
(c) As a matter of construction, although the Act allowed the provider to ‘agree to the request’ or ‘refuse the request’ it did not state that if the provider agreed to the request under s 49(2)(a), an obligation was imposed on the disability service provider to provide the services as requested (or at all) and within a reasonable time (or at all). It was submitted that these matters were not necessary implications arising from the Act.
(d) The broad and discretionary powers of the Secretary to allocate funds, provided for in s 9 of the Act, was not consistent with the plaintiff’s asserted legislative intention. Further, under the Act, a disability service provider would be accountable for its conduct because an applicant, whose request for disability services under s 49 had been accepted but services not provided, could make a complaint to the Commissioner under s 109 of the Act.
Decision
As noted above, there is no issue in this case that:
(a) the plaintiff is a person with a disability,
(b) the plaintiff requested disability services from a disability service provider, being the Secretary, pursuant to s 49(1) of the Act; and
(c) the Secretary agreed to the request pursuant to s 49(2)(a) of the Act.
I consider that the plain reading of the Act is that the Secretary, in its capacity as a disability service provider, has agreed to the plaintiff’s request for disability services. However, I do not consider that this agreement of itself gives rise to a statutory obligation, akin to one in contract, for the Secretary to provide the disability services as specified by the plaintiff in the Request or any such services within any particular period of time, for the following reasons:
(a)Section 49 provides only for a generic request for ‘disability services’. The section does not contemplate that it is the person making the request who will specify what disability services should be provided. Accordingly, agreement to the request is not an agreement to the provision of any specific services and therefore the disability service provider cannot come under an obligation to provide identifiable and specified services.
(b)Consistent with the fact that the Parliament did not intend that there would be any consequent obligation imposed on the disability service provider to provide disability services, as a result of its agreement to a request under s 49(2)(a), is that the Act does not in terms:
(i) create such an obligation;
(ii)describe a method for identifying the specific disability services to be provided; or
(ii) specify the timing in which such services are to be provided.
(c)The plaintiff’s submission that there is no reference in the Act to the concept of a ‘register’ of a person with a disability’s request is correct. However, pursuant to s 35(b) of the Interpretation of Legislation Act 1984, I have had regard to the following passage from the second reading speech for the Disability Bill 2006, where the Minister for Community Services discussed the effect of ss 49 and 50 of the Act:
Currently people with a disability other than an intellectual disability are also required, by policy, to establish they have a disability under the Disability Services Act in order to register for access to disability services. In this case however, a letter from a school, doctor or service provider is in many cases sufficient for the department to establish that the person has a disability. There is no external appeal mechanism regarding this decision.
Under the Disability Bill the same system for deciding that a person has a disability and can register for disability services will be used regardless of the type of disability a person has.
A person or a person on their behalf can request access to disability services and supports from any disability service provider. Where the disability service provider is satisfied the individual has a disability, the request may be agreed to without the need for an additional assessment.
If the request is denied, the disability service provider must notify the person making the request within 14 days. Where the request is denied because the disability service provider does not believe the person has a disability (as defined by the bill), the person may appeal to the secretary and subsequently to the Victorian Civil and Administrative Tribunal. VCAT may uphold the decision of the secretary or make a new decision that is binding on the secretary. This external review creates a greater level of transparency and scrutiny regarding the fundamental issue of whether a person is in the target group for access to disability services than is currently available to people.
The bill, while streamlining access to the system, also reflects current practice arrangements where people, particularly people with a disability other than an intellectual disability, often seek assistance directly from disability service providers.
The bill will establish a framework for access to disability services that will:
ensure a system that is simple and consistent for all people regardless of their disability type;
reduce multiple assessments for people whose intellectual disability has already been determined;
reflect current practice and streamline the process to register for access to disability services by involving disability service providers at an early stage;
ensure the Department of Human Services remains ultimately responsible for ensuring only people with a disability (as defined under the bill) are registered for access to disability services.
The framework for access will also ensure that resources are not directed to undertaking unnecessary assessments, which are often stressful for a person, where a person clearly has a disability. Only when there is some uncertainty will further assessment be undertaken to determine if they have a disability as defined in the act.
The bill also increases transparency regarding the process for prioritising access to disability services and requires that criteria for priority of access must be fair and publicly available. This is an important step in increasing accountability for decision making regarding access to disability services.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 1 March 2006, 409-10 (Sherryl Garbutt) (emphasis added).
(d)The passage quoted above plainly refers to ss 49 and 50 of the Act and, in my opinion, demonstrates that the intention of the Parliament with respect to these sections was as follows:
(i)A request could be made directly to a disability service provider (s 49(1)).
(ii)It was proposed under the Act to have a system whereby a person with a disability could ‘register’ for disability services regardless of the type of disability and without the need for an additional assessment, if it is not necessary (s 49(3)).
(iii)If the request was denied on the basis of the person not having a relevant disability, the person could appeal to the Secretary (ss 49(4)(b) and 50(1)); and subsequently to VCAT (s 50(7)) to decide the question of whether or not the person has a disability.
(iv)Disability service providers would apply criteria for the purpose of prioritising access to disability services; and such a process would be more transparent by requiring the criteria for prioritising to be publicly available.
(e)In my opinion, the second reading speech supports the Secretary’s contention that the acceptance of a request for disability services is an acceptance of eligibility rather than an undertaking of an obligation to provide the disability services, which have been requested by the person with the disability or a person on behalf of a person with a disability.
(f)I have also had regard to the Explanatory Memorandum for the Disability Bill 2006 and, in particular, to the following specifically referring to ss 49 and 50:
PART 4 – DISABILITY SERVICES
Division 1 – General Provisions
…
Division 2 - Accessing Disability Services
Clause 49
gives people with a disability the right to seek services directly from a disability service provider without necessarily having to undergo an assessment of their disability. However, the disability service provider can seek information or require the person to undergo an assessment. If the provider refuses the request, they must notify the person and if the refusal is because the provider does not believe they have a disability within the meaning of the Bill, the person is entitled to have that issue determined by the Secretary.
The provision of services to a person without an assessment of their disability is not evidence that the person has a disability within the meaning of the Act.
The intention of these provisions is to introduce greater flexibility into the delivery of disability services. A person is no longer required to undergo a formal assessment of their disability prior to receiving services, as is the case under the Intellectually Disabled Person's Services Act 1986. In addition, a request can also be made on behalf of a person with a disability.
Clause 50
allows a person to request the Secretary to decide whether they have a disability if a provider has refused to provide services. The Secretary may require such information and determine such processes as are appropriate in the circumstances. The formal assessment must be commenced within 30 days of the request and may be deferred for up to 3 months in appropriate cases.
The Secretary is required to notify the person of the decision and to advise the person that they may seek review of that decision in the Victorian Civil and Administrative Tribunal. The provision requires a person to make an application to review within 28 days of the Secretary's decision. The Tribunal may make a range of orders that have effect as if they were the decision of the Secretary.[10]
[10]Explanatory Memorandum, Disability Bill 2006 (Vic) 12.
(g)In my opinion, the Explanatory Memorandum demonstrates the legislative intention with respect to ss 49 and 50 of the Act was that:
(i)a person with a disability could seek services directly from a disability service provider; and
(ii)a person seeking the services would not necessarily have to undergo an assessment of their disability prior to receiving the services.
(h)It is notable that nowhere in the Explanatory Memorandum or the second reading speech is there an indication that the Parliament intended to create a scheme whereby a person with a disability was able to identify the disability services required; and the disability service provider was obliged to accept or refuse the services as requested.
(i)I accept the defendants’ submission that an objective of the Act, to make disability service providers accountable to persons accessing disability services,[11] will be met by the provisions of the Act including:
(A)the disability service provider following the criteria ‘developed and published’[12] by the Secretary; and
(B)the function of the Commissioner to ‘determine what action should be taken by a disability service provider where a complaint has been found to be justified’.[13] For the reasons noted below, I accept the defendants’ submission that the plaintiff would be entitled to complain to the Commissioner under s 109 of the Act, about the failure of the Secretary to provide the requested services.
[11]The Act s 4(f).
[12]The Act s 8(2)((e).
[13]The Act s 16(l).
Recourse to the Commissioner
Under s 109(a) of the Act, a complaint may be made to the Commissioner if it ‘arises out of the provision of disability service’. A ‘disability service’ is defined to mean ‘a service specifically for the support of persons with a disability which is provided by a disability service provider’.[14]
[14]The Act s 3.
The plaintiff contended that the Commissioner did not consider that it was empowered by s 109(a) of the Act to investigate a complaint about the failure to provide disability services, which had been requested and registered on the DSR. In other words, the contention was that a complaint, which arises ‘out of the provision of a disability service’, does not include a complaint about the refusal to provide a disability service.
Whether or not that is the interpretation contended for by the Commissioner (a matter about which there is no evidence), I would reject the contention. In my opinion, on a plain reading of s 109(a), a complaint that a disability service provider, in providing its disability services, has determined to provide disability services to one and not to another, falls squarely with s 109(a). The proposition that the complainant has not received any service and therefore the complaint does not arise from the provision of a disability service, focuses on the wrong issue. The complaint relates to the disability service provided by the disability service provider.
Accordingly in my opinion, a person with a disability, who is not in receipt of services from a disability service provider, is entitled to complain to the Commissioner about such non-provision of disability services from the provider. In this case it is even clearer because the plaintiff is in receipt of services from the Secretary; and his complaint relates directly to the inadequacy of those services given the extent of his disability.
If my view of the meaning of s 109(a) was incorrect and the sub-section was ambiguous, I would not hesitate in resolving such ambiguity on the wider reading of the sub-section for the following reasons:
(a) Allowing a person with a disability to complain about a failure of a disability service provider to provide disability services is consistent with the objective of the Act to make disability service providers accountable to persons accessing disability services.[15]
(b) In my opinion, the purpose of the Act generally is to confer significant benefits on persons with a disability.[16] In particular, s 109(a) is intended to ensure that people with disabilities have recourse against disability service providers and the section provides an important mechanism by which those persons can have the Commissioner investigate complaints ‘relating to disability services’.[17] Accordingly, s 109(a) ‘should be construed to give the fullest relief which the fair meaning of its language will allow’.[18]
[15]The Act s 4(f).
[16]See especially the Act ss 1, 4, 5.
[17]The Act s 16(a).
[18]Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384 (Isaacs J, dissenting); adopted by the Victorian Court of Appeal in R v Irvine (2009) 25 VR 75, 91-2 [90] (Nettle and Neave JJA, Lasry AJA) and Kaye J in Dudas v Monash City Council [2012] VSC 578, [68]. Also see R v Kearney; Ex parte Jurlama (1984) 158 CLR 426, 433 (Gibbs CJ); Zangzinchai v Milanta (1994) 53 FCR 35, 42-4 (Burchett J); Australian Postal Corporation v Forgie (2003) 130 FCR 279, 293 (Black CJ, Merkel and Stone JJ).
Orders
I do not consider that the Secretary is under a statutory obligation under s 49 of the Act to provide to the plaintiff the disability services as requested. I propose to dismiss the motion.
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