DWP v Public Guardian

[2020] NSWCATAD 64

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DWP v Public Guardian [2020] NSWCATAD 64
Hearing dates:	13 December 2019
Date of orders:	24 February 2020
Decision date:	24 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member
Decision:	The decisions of the Public Guardian are affirmed.
Catchwords:	ADMINISTRATIVE LAW – review of decisions of the Public Guardian – accommodation and level of care - – relinquishing tenancy - welfare and interest – paramount consideration – wishes of protected person - whether decision is the 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) Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	DWP (Applicant) Public Guardian (Respondent)
Representation:	Solicitors: Applicant –(Self Represented) Public Guardian (Respondent)
File Number(s):	2019/00178465
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. The provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings.

Reasons for decision

Background

1. This is an application involving an 84 year old woman who is the subject of a guardianship order. Her son is the applicant and has applied to the Tribunal to review two decisions of the Public Guardian to make a permanent accommodation decision for his mother and to relinquish her tenancy on a Housing NSW unit.

2. To preserve anonymity, I will refer to the applicant by the anonymised text, ‘DWP’ and I will refer to the person under guardianship by reference to her relationship with DWP as ‘the mother’.

3. The mother resides permanently at an aged care facility. She is reported to have long standing mental illness and cognitive impairment. She has two children, the son, DWP who resides in his own accommodation and a daughter with severe disabilities who lives in a group home, close by to the aged care facility where the mother lives.

4. By previous order of the Tribunal on 4 July 2018, the Public Guardian was given authority to make decisions about the mother’s accommodation.

5. In November 2018, the Public Guardian decided to permanently place the mother in an aged care facility and on the 13 December 2018, the Public Guardian decided to relinquish her Housing NSW unit.

6. DWP disagreed with the decisions of the Public Guardian regarding his mother’s accommodation and relinquishing her unit and sought an internal review of the decisions. He was opposed to his mother residing in the aged care facility and wanted her to return home to her Housing NSW unit. He wanted his mother to be cared for by himself and other family members.

7. On 7 May 2020, the Public Guardian reviewed and upheld the original decisions. On 3 June 2019, DWP made an application to NCAT to seek an administrative review of the decisions.

8. There is no dispute regarding the application being lodged within time.

9. The issue is whether the decisions of the Public Guardian are the correct and preferable decisions.

10. For the reasons set out below, I have decided to affirm the decisions of the Public Guardian to permanently place the mother in the aged care facility and to relinquish the tenancy of her Housing NSW unit.

Jurisdiction and Applicable Law

11. Section 80A of the Guardianship Act1987 and cl 17 of the Guardianship Regulation 2016 provide for the Tribunal to conduct an administrative review (under the Administrative Decisions Review Act1997 (the ADR Act)) of a decision of the Public Guardian, made in exercising the Public Guardian's functions under the Guardianship Act as a guardian.

12. Applicants who may apply to the Tribunal under s 80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision' (s 80A(2)(d)). I am satisfied that DWP as the son of the protected person and as her former carer is a person adversely affected by the decision under review. DWP has standing necessary to seek administrative review.

13. In conducting the review, it is the role of the Tribunal to stand in the shoes of the Public Guardian, to conduct a merits review to determine whether, in accordance with any applicable written or unwritten law, the correct and preferable decision having regard to the material before us, see s 63 of the ADR Act. The Tribunal may consider material which was not before the original decision-maker. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

14. Section 4 of the Act sets out the general principles relating to the exercise of guardianship functions under the Act. Those principles apply in these proceedings to the Tribunal and how I might arrive at the correct and preferable decision. The section provides:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

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

(b)   the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)   such persons should be encouraged, as far as possible, to live a normal life in the community,

(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,

(f)   such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

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

(h)   the community should be encouraged to apply and promote these principles.

15. In making the decision under review the Public Guardian was under a duty to comply with each of these principles. The Tribunal is subject to the same duty. It is the application of those principles and the outcome that is the contested issue between the applicant and the respondent.

16. Based on the above matters, I am satisfied that the Tribunal has jurisdiction to deal with the matter.

Practice and procedure

17. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. (Civil and Administrative Tribunal Act 2013, s 36).

18. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form. (Civil and Administrative Tribunal Act, s38 and s 67).

Written Material

19. DWP relied on written submissions received by the Tribunal on the 2 December 2019

20. The respondent relied on the Reasons for Decision of guardianship orders made regarding the mother dated 23 May 2018, 4 July 2018 and 19 September 2019. The respondent relied on the report of the reasons for decision under review by the Public Guardian dated 7 May 2019 and an application for dismissal dated 31 October 2019. The respondent also relied on an order of the Consumer and Commercial Division dated 15 July 2019 terminating the mother’s tenancy on her Housing NSW unit.

The Hearing

21. DWP attended the hearing in person and gave evidence with the assistance of a Cantonese interpreter. Mr David Thompson from the Public Guardian attended the hearing in person, gave evidence and made submissions. The Residential Manager at the aged care facility, Ms Helen Burke gave evidence by telephone.

22. The mother did not participate in the hearing. I noted from the previous guardianship orders that the Tribunal have consistently made findings that the mother lacked the cognitive capacity to make complex decisions. This was also consistent with the current view of Ms Burke who told us she engaged with the mother daily and agreed that her understanding and decision making was limited to simple matters. I also noted there was some evidence of the views and wishes of the mother from the parties which could be considered during the hearing.

23. Based on all the evidence, I am satisfied that the hearing can proceed without the formal participation of the mother.

History of Guardianship orders regarding the mother

24. On the 9 May 2014, the Public Guardian was appointed guardian for the mother for 6 months with a services function. The guardianship order has been reviewed and renewed since this time.

Orders made on 23 May 2018

25. On 22 May 2018, the Public Guardian made an urgent application to request a review of the guardianship order made on the 8 November 2016. The Public Guardian sought to add further functions and authorities including access, accommodation (including authorising others), health care, medical and dental consent. At the time of the hearing the mother was living in her Housing NSW unit with her daughter and being primarily cared for by DWP. The urgent application was made the Public Guardian based on allegations of physical and psychological abuse by DWP towards the mother. There were other allegations that DWP was interfering and preventing services being received by the mother. The Public Guardian believed the mother was at risk living at home and made the application. DWP denied all the allegations against him.

26. The Tribunal convened an urgent hearing on the 23 May 2018 and heard evidence from DWP, the Public Guardian, service providers, a support worker and the separate representative for the mother. The Tribunal made a short 6 week order and re-appointed the Public Guardian with the additional functions and authorities requested by the Public Guardian. The Tribunal also made the following findings on the balance of probabilities as set out in the Reasons for Decision:

1. [DWP] is interfering with and preventing personal services on behalf of the mother,

2. contrary to the evidence of [DWP], both the mother and daughter appeared to be very thin, anaemic and always complaining of being hungry, and

3. that over the previous three years, [DWP] was involved in ‘hugging incidences’ with a support worker that were inappropriate and caused her to cease her employment.

27. In relation to an alleged incident of assault by [DWP] causing the mother to lose a tooth, the Tribunal was unable to make a finding about whether the incident occurred.

Orders made on 4 July 2018

28. On 4 July 2018, the Tribunal made a further guardianship order appointing the Public Guardian for 12 months with the functions of access, accommodation, healthcare, services, medical and dental consent. At that time the Public Guardian had moved the mother to an aged care facility.

29. DWP participated in the hearing and disputed the allegations against him regarding assault and refusing services. He also contested the accommodation decision and wanted his mother to return home to her unit.

30. From the Reasons for Decision, the Tribunal made the following findings regarding the mother’s capacity:

I consider that [the mother] continues to have a cognitive impairment which at least partially affects her ability to make decisions about her life. I accepted the evidence of [the care manager] that [the mother] needs prompting and supervision to manage her daily activities in the group time and considered this demonstrates that [the mother] has a degree of cognitive impairment. I considered [the mother] has deficits in her memory, orientation and reasoning abilities based on Dr Yates assessment and her presentation at the hearing where she was unable to recall where she lives and gave inconsistent evidence about important issues in her life such as her wish to see her son and her preference for a guardian.

On the basis of this evidence, I was therefore satisfied that [the mother] continues to have a disability which prevents her from making important life decisions. She’s a person for whom I can make a further guardianship order.

31. Regarding access between the mother and DWP, the Tribunal made the following findings:

Apart from her evidence at the hearing, [the mother] has consistently stated her view that she does not wish to see her son and that she’s afraid of him. [The mother] has a history of making and then withdrawing allegations about her son’s treatment of her. As [the mother]s views appear to fluctuate about this, I consider that she needs a guardian to decide what is the most appropriate access to her son which meets her needs and respect her wishes.

32. Regarding the weight to be placed on the evidence of DWP, the Tribunal made the following findings:

I placed lesser weights on [DWP]’s view. I accepted that he was opposed to the continuation of the guardianship order. However, I considered that [DWP]’s reasons for this were predominantly focused on defending himself from the allegations they had assaulted his mother and on challenging the Public Guardian’s decision to move his mother to alternative accommodation. [DWP] provided little evidence and submissions about how decisions would be made for his mother in the absence of a guardianship order. [DWP] was more focused on the allegations against him than the future plans for his mother’s well-being as he was vague and contradictory about what accommodation and services she might need.

Orders made on 19 September 2019

33. On 19 September 2019, the Tribunal made a further guardianship order that the Public Guardian be re-appointed as guardian for the mother for 2 years with functions of access, accommodation, health services, medical and dental consent.

34. The Reasons for Decision set out the finding regarding the mother’s capacity:

…the weight of the opinion canvassed in previous Tribunal Reasons for Decision is to the effect that [the mother]’s capacity to make important decisions is restricted due to cognitive impairment, and the Tribunal has previously decided that is the case. In my view those previous decisions of the Tribunal supplant the assumption of capacity. With the exception of the comments of Dr Wong, on which I place little weight, I have not been provided with any more recent documentary evidence of [the mother]’s capacity that would cause me to overturn the decisions of the Tribunal on this matter. Further, the oral evidence of Ms Zu, who is in a position to assess [the mother]’s day to day capacity indicates that she continues to lack the ability to make major decisions.

35. The Reasons for Decision referred to evidence of the views of the mother:

The social worker, Ms Detherbridge from the Specialist Mental Health Service for Older People made progress notes which stated she visited the mother on the 15 February 2019 with a Cantonese speaking colleague who acted as interpreter. The mother made the following comments:

a)   She was happy living at the facility and was happy to remain living there. She enjoyed walking around the facility and some of the activities that were provided there.

b)   She had been visited in the previous week by relatives. Her daughter usually visits her each week and her son visits her sporadically. She denied being fearful during visits.

c)   [The mother] had no worries or concerns that she wanted to discuss.

The Public Guardian’s Internal Review of decision and reasons

36. Pursuant to their accommodation function, the Public Guardian in November 2018 decided to permanently place the mother at the Baptist Care aged care facility.

37. On 7 May 2019, the Public Guardian reviewed the decision upon the request of DWP. It decided to uphold the decision. The report of the review of the decision set out the following reasons:

1. The original decision had been staged over a four month period to allow for a complete assessment of [the mother]’s needs to assist a decision about the most suitable form of accommodation and support.

2. The first assessment was performed on 15 August 2018 by the Inner West Aged Care Assessment Team (ACAT) and recommended permanent residential care. The finding was based on an interview with the mother, assessment of her mobility and records provided by the Older People’s Mental Health Team at Ryde Hospital.

3. The second assessment was carried out on 15 February 2019 by the Older People’s Mental Health Team and recommended the mother remains as a permanent resident at Baptist Care facility. The paramount consideration for this decision is for the mother’s welfare and interests, protecting her from neglect, abuse and exploitation.

4. The original decision and reasons for decision prepared by NCAT all indicate the mother had a long-standing view to reside in an aged care facility. This is also reflected in an interview with the Older People’s Mental Health Team had with the mother at Baptist Care where she reported liking her new accommodation.

5. The decision is also based on the mother’s inability to live independently

38. The reasons for decision also refer to the decision to terminate the mother’s lease with Housing NSW. It stated that given the permanent accommodation decision has been reviewed and upheld and given the mother is the sole leaseholder of the Housing NSW unit, it is appropriate the Public Guardian advises Housing NSW of the outcome of the decision.

The Public Guardian’s application to dismiss the review of decision to relinquish Housing NSW unit

39. On 4 November 2019, the Public Guardian filed an application to dismiss the application to appeal the decision of the Public Guardian to relinquish the mother’s Housing NSW unit. It stated that the Public Guardian did not action the decision to relinquish the unit, to allow DWP to exercise his rights of appeal. However, independently, the Land and Housing Commission made an application to NCAT Consumer and Commercial Division to terminate the tenancy on the basis that the mother had moved permanently into an aged care facility. The tenancy agreement was terminated by order of the NCAT dated 15 July 2019 and possession was granted on 2 August 2019.

40. The Public Guardian sought to dismiss the review application as the outcome DWP was seeking, that the unit be available to his mother to return to, “cannot be provided by the Tribunal”.

The evidence of DWP

41. DWP provided a written statement and gave oral evidence. The relevant points can be summarised as follows:

1. His mother is not receiving good quality care. The care is much worse than the care she was receiving at home in her unit. The food at the facility is often frozen, too sweet and there are not enough vegetables. His mother is getting fat.

2. His visits to mother at the facility are very difficult due to the Public Guardian requiring all his visits with his mother to take place in the foyer and to be supervised. He last saw his mother on 21 September 2019 and again on 17 October 2019. He also stated several times in his evidence that he denied the abuse and neglect allegations involving his mother and there was no evidence to support them and no evidence to justify supervision of his visits.

3. His mother has expressed to him her wish to return home to live. He referred to a specific date of 10 July 2019 when she told him in person that she wanted to return home. He stated his mother can make her own decisions and is very clear minded.

1. He accepted he could not return to the Housing NSW unit as the tenancy has been terminated. He therefore proposed that his mother moves to rental accommodation and he would be her primary carer with services for showering and helping her exercise. He has cared for her for 20 years and he knows her best. He can also take her out to dinner.

42. DWP raised the following points which were not within the ambit of the Tribunal and not relevant considerations to the decisions being reviewed:

1. DWP’s complaint that he was not notified of the hearing of the application filed by the Land and Housing Commission at the Consumer and Commercial Division of NCAT on 15 July 2019 which made an order to terminate the tenancy agreement.

2. DWPs several complaints against the staff at Housing NSW, the Sheriff’s office and the NSW Trustee and Guardian that he was prevented from collecting his belongings from his mother’s unit after the tenancy was terminated.

The evidence of Mr David Thompson from the Public Guardian

43. Mr Thompson gave oral evidence and submissions. He personally visited the mother at the aged care facility on the 12 December 2019 and spent about 15 minutes with her. She was wearing clean clothes and her hair had been styled. She was in her own room. She seemed in good spirits. She told him the food was good. She told him that her daughter from the Group Home visits her once a week. She seemed comfortable and settled at the facility and the Public Guardian have no concerns about her care.

44. Mr Thompson agreed that it was important for the mother to receive visits from her son, DWP. One of the reasons for choosing the facility was its location was near to where the son resided. In relation to the supervision of visits, Mr Thompson explained that this requirement was due to previous incidents of “heightened conversations’ which were stressful for the mother. Mr Thompson also agreed that when there is evidence of ongoing visits without any incidents the Public Guardian could consider reviewing the need for supervision.

The evidence of the Facility Manager, Ms Helen Burke

45. Ms Burke gave oral evidence and told us that she was a qualified registered nurse and the facility manager. She had been in the position for nearly four months and over this time had observed the mother on a mostly daily basis.

46. In her view and based on her conversations and dealings with the mother, she believes the mother can make some simple moment to moment decisions but not the complex decisions.

47. Ms Burke believes the mother is very settled in the accommodation. The mother participates in activities organised by the facility. There is a cohort of Cantonese speaking residents and the mother mingles with this group and seems comfortable. The mother has visits from her daughter each week. She comes with her carer and they all have lunch at the facility. She also has other family visits. The mother has access to physiotherapy and exercise classes but she is unsure whether the mother utilises these services.

48. Ms Burke believes the quality of the food at the facility is very good. The mother always finishes her food and has put on a healthy weight since coming into care. That is. since September 2018, the mother has increased her weight in kilograms from 55 to 71.

49. Ms Burke believed that the mother did not have the capacity to return home. Her mobility is limited and she often needs assistance from staff to assist her movement. She needs a walking frame. She also needs assistance for personal care and hygiene. She can eat independently but her food needs to be prepared.

50. Ms Burke recalled that DWP last visited his mother at the facility in October last. The visit was supervised by one of care workers who speaks Cantonese. She believes the visit went well and was uneventful.

Consideration of Evidence

51. In his evidence, DWP accepted that his mother returning home to her unit was no longer possible as Housing NSW has ended the tenancy agreement. DWP then proposed that his mother move into rental accommodation. He would then care for his mother with the assistance from services and family members. However, in his evidence, DWP did not provide any details of the type of rental accommodation he was considering, no details on the services he was planning to use and how this would occur. It appeared that DWP had given limited consideration in putting forward the rental proposal. It appeared a mere outline of a plan without any concrete information provided. The proposal also included no information about her care needs, functional deficits referred to in the evidence and how these issues would be addressed.

52. DWP gave evidence that he believed the care his mother was receiving at the facility was worse than she received at home. He made a series of claims including, “the food is bad; the food is frozen; it’s too sweet and no vegies”. He also stated his mother is “getting fat”. However, DWP provided no details about the quality of care she was receiving and how the care was “worse than the care she received at home”. There was also no evidence or supporting information. He stated his view was based on his observations when he visits but his visits were limited to a few times a month with his last visits being on the 21 September 2019 and 17 October 2019. I preferred the evidence of Ms Burke who was a registered nurse and manager of the care facility. She stated that the mother eats all her food and has put on weight and she is now at a healthy weight. The mother is also engaged with activities and appears settled at the facility. This evidence is supported by Mr Thompson from the Public Guardian who visited the mother at the facility on the 12 December 2019. Finally, the previous Guardianship Tribunal hearings heard evidence from allied health workers that the mother had expressed to them that she was happy and content at the facility and did not wish to return home.

53. The final reason for DWP’s application was his belief that his mother wished to return home. In evidence, DWP stated that on 10 July 2019 he spoke to his mother and she told him her view. DWP provided no other evidence from family members or other persons corroborating this view. The alleged view is also contrary to the view expressed to allied health workers as documented in the Reasons for Decision during the previous Guardianship Tribunal hearings. Further, any expressed views of the mother need to be carefully considered in view of the consistent expert medical evidence that she has a cognitive impairment and is not able to make complex decisions. I also note that DWP provided no updated medical evidence regarding his mother’s capacity.

Conclusion

54. For the reasons detailed above, I did not find DWP to be a persuasive witness and give little weight to his evidence. That is, there was a lack of any supporting evidence or information to support his views, there was no detailed or developed alternative accommodation proposal and there was a preponderance of contrary evidence regarding the mother’s capacity and wishes which DWP did not address.

55. Based on the totality of the evidence and the findings of the previous Guardianship Tribunal on review on the 23 May 2018, 4 July 2018 and 19 September 2019, I am satisfied that the correct and preferable decision is for the mother to remain as a permanent resident of the aged care facility. This decision also supports the correctness of the Public Guardian’s decision to relinquish the Housing NSW unit which was in the sole name of the mother. In making these decisions I have been guided by the s.4 principles of the Act and the welfare and interest of the mother as my paramount consideration.

Order

1. The decisions of the Public Guardian are affirmed.

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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: 24 February 2020