CVU v NSW Trustee and Guardian

[2017] NSWCATAD 123

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CVU v NSW Trustee and Guardian [2017] NSWCATAD 123
Hearing dates:	3 March 2017
Date of orders:	21 April 2017
Decision date:	21 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant Senior Member
Decision:	The decision of the NSWTG to terminate a fortnightly allowance paid to the applicant and instead, require the applicant to seek pre-approval for expenditure and provide receipts is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review of decision of NSW Trustee and Guardian – objects and principles of the NSW Trustee and Guardian – payment or reimbursement of expenses – allowances or pre-approval and receipts - correct and preferable decision.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Category:	Principal judgment
Parties:	CVU (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	CVU (Applicant in person) NSW Trustee and Guardian (Respondent)
File Number(s):	2016/00378490
Publication restriction:	s 64 Civil and Administrative Tribunal Act 2013 (NSW) – no details identifying applicant, protected person or witnesses to be published.

REASONS FOR DECISION

Background

1. The applicant is the daughter of the protected person and seeks a review of a decision of the NSW Trustee and Guardian (NSWTG) to terminate a carer allowance paid to her.

2. The protected person will be referred to as ‘the mother’ in this decision. The mother is 87 years old and has a disability being dementia. On the 19 January 2016 the Guardianship Tribunal found the mother was not capable of managing her finances and made an order to appoint the respondent (NSWTG) to exercise the functions of financial management for the mother.

3. At the time of the financial management order the mother lived with the applicant in the applicant’s home. From 25 February to July 2016 the NSWTG paid the applicant an accommodation allowance of $250.00 per fortnight and a further $161.00 per fortnight for costs in caring for the mother. In July 2016 the mother was admitted to hospital and the NSWTG stopped paying the allowance. The allowance was then reinstated for a short time but at the lower rate of $50.00 per fortnight. On 4 October 2016, the mother was placed in an aged care facility and the respondent terminated all allowances paid to the applicant. This was on the basis the costs of her care were being met by the facility as part of her accommodation fees. The applicant seeks an administrative review of this decision.

Jurisdiction

4. By emails dated 13 and 18 October 2016 the respondent informed the applicant that to receive payment for her mother’s additional expenses she must seek pre-approval from the respondent and provide receipts. The respondent would not be paying the applicant any further allowances. The applicant did not apply for an internal review of the decision but filed an application for administrative review of the decision with the Tribunal on the 11 November 2016.

5. Under s.55(4)(b) Administrative Decisions Review Act 1987 the Tribunal can deal with an application even though the applicant has not applied for an internal review, if it is satisfied that it is necessary to deal with the application;

6. ‘in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administrative reviewable decision of the administrator concerned’.

7. The applicant did not provide reasons for not seeking an internal review. However, the Tribunal notes the application for review was filed within a reasonable time and it is satisfied that hearing the application will protect the applicant’s interests.

8. The Tribunal is also satisfied the applicant is eligible to make the application being a person whose interests are adversely affected by the respondent’s decision. See s.62 NSW Trustee and Guardian Act 2009

Publication restriction

9. The Tribunal made an order under s.64(1) of the Civil and Administrative Act 2013 prohibiting the disclosure of the name of any person, whether or not a party to the proceedings in the Tribunal or a witness summoned by, or appearing before the Tribunal.

Respondent’s position

10. The respondent or NSWTG has a protective function and must ensure it observes accountability and transparency when carrying out its functions.

11. It was appropriate to pay the applicant an accommodation and carer’s allowance while the mother was living with the applicant and in the applicant’s home. This allowance covered the costs incurred by the applicant in caring for the mother. However, it was also appropriate to terminate the allowance once the mother moved into the aged care facility as her needs were covered and paid for by the facility.

12. The respondent will pay any additional expenses not paid by the facility that are reasonable and relate to the care and welfare of the mother. However, the appropriate procedure is for the family member to seek pre-approval of the purchase or expenditure from the respondent. Once approved, the family member may then incur the expenditure and present the receipt to the respondent for payment. This procedure is standard practice and exists to ensure the respondent is accountable and transparent in managing the finances of the mother. The difficulty with allowances is that the expenditure cannot be tracked and checked by the respondent.

13. During the hearing the respondent stressed to the applicant that by terminating the allowance, the NSWTG was not suggesting any misconduct or that she had done anything wrong. It was only to ensure proper procedure and accountability as part of their protective obligations to the mother.

Applicant’s position

14. The applicant filed statutory declarations dated 5 November 2016 and 18 January 2018. She also made oral submissions during the hearing. In her first statutory declaration, the applicant sought an order from the Tribunal that the respondent pay a fortnightly allowance of $200.00 to cover the additional costs of caring for her mother. However, during the hearing she stated she was flexible and would be agreeable to receiving a lesser amount of a regular allowance but she did not specify that amount.

15. The applicant stated the aged care facility where her mother resides only covered the costs of basic items. They did not cover personal items or items that enabled her mother to ‘live with dignity’. She needed an allowance to pay for these additional items.

16. The applicant made the following points to support the payment of an allowance:

1. The applicant has previously sought reimbursement for expenses from the respondent but the respondent has not responded to her requests, or if they did respond, there was a waiting period of 21 days.

2. The applicant has previously paid $1,200 in expenses for the mother and this money has not been reimbursed by the respondent. She is still “out of pocket” in the sum of $1,200.

3. The applicant has tried to purchase clothes for the mother from retail clothing shops but the shops have refused to give her an invoice or a receipt. The applicant has also received receipts or ‘dockets’ from a retail store but these have not been accepted by the NSWTG.

4. The aged care facility does not meet the incidental and personal expenses such as clothing, footwear and incontinent aids. If they do meet any of these items such as clothing it is basic and the applicant buys better quality and more appropriate clothing for the mother to allow her to live in dignity.

5. The Applicant has purchased numerous items such as disposable pads, talcum powder, tissues, clothing and shoes for the mother. She stated the nappies provided by the facility were of a very poor quality and “fell off her mother”. She has had to pay for disposable pads at $33.00 each and her mother needs about 4 packets per week. The Applicant does not like the haircuts the facility has arranged for her mother and would like to arrange an alternative service. The Applicant also spends money on washing powder to wash her mother’s clothes at home.

17. Finally, the applicant is aware of the respondent’s procedures to seek pre-approval of expenses and provide receipts but she finds this procedure unnecessary, unfair and causes her unnecessary stress.

Consideration

18. The Tribunal must decide if the decision by the respondent to terminate the allowance payable to the applicant is the correct and preferable decision.

19. Section 39 of the NSW Trustee and Guardian Act 2009 sets out the principles governing decision makers managing the financial matters of a protected person. The principals relevant to this case include:

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(g) such persons should be protected from neglect, abuse and exploitation.

20. The respondent terminated the applicant’s allowance as the mother had moved to an aged care facility and the costs of her care were met by the facility. The respondent agreed to pay any additional costs relating to the mother’s needs but required the applicant to follow the usual procedure of seeking pre-approval from the respondent and submitting receipts or proof of payment.

21. The Tribunal agrees with the decision of the respondent. It is consistent with the section 39 principles set out above to protect the welfare and interests of the mother and further, to protect her from ‘abuse and exploitation’. That is, an allowance does not allow for accountability and scrutiny of expenditure and is not appropriate in circumstances where the main costs of the mother’s care are covered by the aged care facility and there is no other basis for such a payment.

22. The proposed procedure requiring pre-approval of expenditure and proof of payment is not targeted at the applicant but rather is the general approach taken by the respondent to the reimbursement of payments made by others incurred on behalf of protected persons.

23. The applicant requested she be paid a carer’s allowance as it was the only ‘workable option’ and referred to various failures by the respondent. These included a failure by the respondent to pay some receipts, a failure to pay promptly with a waiting period of 21 days and a failure to accept receipts or dockets from a retail shop. However, none of these claims were substantiated by other evidence including any documentary evidence. There were emails between the parties but they revealed the respondent had made payments to the applicant and made them promptly. The applicant also referred to retail shops refusing to provide receipts or proof of purchase but again the applicant produced no supporting evidence for this claim. This claim is also highly unlikely given the legal obligations of all business to provide such documentary proof to its customers.

24. There is no other reasonable basis for re-instating the allowance to the applicant consistent with the section 39 principles of the Act.

25. During the hearing the applicant acknowledged she was under stress with the responsibility of visiting and assisting both her elderly parents at the aged care facility. Since the hearing of this matter the applicant’s father has died leaving the applicant’s mother in the same aged care facility. The applicant also acknowledged being under stress when dealing with Office of the NSWTG. In this respect the Tribunal referred to a suggestion made by the respondent that would minimise the applicant’s dealings with the respondent. This entails the setting up of an ongoing ‘comfort account’ at the aged care facility with regular contributions by the respondent. This account can be used by family members to pay for outside services such as grooming and other personal items not covered by the facility. This arrangement has been used by other protected persons managed by the respondent and one in which the applicant may wish to explore.

Order

26. The decision of the respondent is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 April 2017