DYH v NSW Trustee and Guardian

Case •

[2022] NSWCATAD 25

•

21 January 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DYH v NSW Trustee and Guardian [2022] NSWCATAD 25
Hearing dates: On the Papers
Date of orders: 21 January 2022
Decision date: 21 January 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: N Nicholls, Senior Member
Decision:

(1)   The decision under review is affirmed.

(2)   The application made on 31 August 2021 and amended on 19 October 2021 is dismissed.

(3)   The names of the parties in this matter, the protected person, and all persons related to her, are not to be disclosed.

Catchwords:

Trustee and Guardian Act 2009 – administrative review of decision to decline payment of rent to applicant by carers of protected person

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Trustee and Guardian Act 2009

Guardianship Act 1987

Cases Cited:

Kioa v West (1985) 159 CLR 550

Category:Principal judgment
Parties: DYH and EIV (Applicants)
NSW Trustee and Guardian (Respondent)
Representation: Applicants (Self-represented)
NSW Trustee and Guardian (Respondent)
File Number(s): 2021/00251242
Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 the names of the parties in this matter, the protected person, and all persons related to her, are not to be disclosed.

REASONS FOR DECISION

INTRODUCTION

  1. On 31 August 2021, and as amended on 19 October 2021, “DYH” and “EIV” (‘the applicants’) made an application to this Tribunal pursuant to section 55(1) of the Administrative Decisions Review Act 1997 (‘ADRA’) seeking review of the decision made on 30 July 2021, and affirmed on internal review on 27 August 2021, by officers acting on behalf of the NSW Trustee and Guardian (‘the respondent’).

THE MATERIAL BEFORE THE TRIBUNAL

  1. On 18 October 2021 the respondent provided a bundle of documents pursuant to section 58 of the ADRA. There are 32 separate documents in this bundle. Not all are directly relevant to the issue in the review, but they do provide context. Where necessary I refer to these documents by the index number identifier provided by the respondent with the bundle of documents.

  2. On 19 October 2021 the Tribunal (differently constituted) made orders for the conduct of this matter. As a result, the parties provided the following:

A. Submissions by the applicants received on 22 October 2021. (‘AS1’)

B. An amended application received on 26 October 2021 pursuant to orders made by the Tribunal.

C. A bundle of documents sent by the applicants with reference to the earlier submissions and received on 26 October 2021.

D. The respondent’s submissions received on 19 November 2021. (‘RS’)

E. The applicants’ submissions in reply received on 29 November 2021. (‘AS2’)

BACKGROUND

  1. The current application arises from a complex factual matrix involving the family of an elderly woman who has been found to have a cognitive disability which prevents her from being able to make important life decisions (see further below).

  2. For reasons which are set out below I will refer to her as ‘Mrs X’. She has three adult children. She and her grandson ‘EIV’, the son of one of her daughters (‘DYH’), are tenants in common of a property in southern Sydney (‘the property’). It is alleged by the respondent that EIV’s interest in that property was sold to EIV (reportedly for $1) by Mrs X’s husband, who has lived overseas for a number of years.

  3. Mrs X’s other daughter (‘Ms Y’), and Mrs. X’s son (‘Mr Z’) live with her at the property. As is set out below they provide care for her.

  4. EIV and DYH do not live at the property. They claim that EIV has been denied access to the property. They have made repeated attempts to persuade the respondent to charge rent from Ms Y and Mr Z.

THE CENTRAL ISSUE

  1. On 19 October 2012 the Tribunal also made the following orders:

“5 The parties agree that the matter is to be determined on the papers without the need for a hearing.

6 The matter is to be referred to a member for determination on the papers after 26 November 2021.

7 Notes:

The Tribunal notes that the issue for determination is the refusal by the respondent to charge rent.”

  1. The submissions provided by the applicants, and the accompanying documents, range over a large number of matters. However, the issue now for the Tribunal involves a far narrower and specific question.

  2. As is set out in further detail below, the applicants asked the respondent to charge rent of Ms Y and Mr Z while they live at the property. The respondent decided not to do so. The question for the Tribunal now is to determine the correct and preferable decision in relation to the applicants’ request. (With reference to section 63(1) of the ADRA).

THE LEGISLATIVE CONTEXT

  1. There is no dispute now between the parties that the Tribunal has jurisdiction to consider this matter. This jurisdiction arises from section 30 of the Civil and Administrative Tribunal Act 2013 (‘CATA’) which provides that the Tribunal has administrative review jurisdiction to review a decision of an administrator in the circumstances set out in the ADRA.

  2. Section 6 of the ADRA defines ‘decision’ as, including, ‘doing or refusing to do any other act or thing’ (Section 6(1)(g) of the ADRA). The respondent’s refusal to impose or require the payment of rent by Ms Y and Mr Z is such a refusal.

  3. Section 7 of the ADRA provides the meaning for the term ‘administratively reviewable decision’. This includes, as in the current case, conduct which is a ‘refusal’ (Section 7(2)(a) of the ADRA).

  4. Jurisdiction is conferred in this matter by the operation of section 62 of the NSW Trustee and Guardian Act 2009 (‘T&GA’), which provides that an ‘affected person’ may apply to the Tribunal for an administrative review of a decision by the NSW Trustee (the respondent) that is in connection with the exercise of the Trustee’s powers under Division 1 of Part 4.5 of the TG&A (see section 62(1)(a)).

  5. The subject decision was made in the exercise of such a function. Section 59 of the T&GA which deals with the application of money of managed estates, is within that Division.

ON THE PAPERS

  1. On the material before the Tribunal now, I am satisfied that the Tribunal has the power to dispense with a hearing pursuant to section 50(1)(c) of the CATA. Both DYH and counsel for the respondent were present (by telephone) when the Tribunal made the relevant order on 19 October 2021 (see the ‘Tribunal Attendance & Service of Order Record’).

SUPPRESSION OF IDENTITIES

  1. In RS (at [1]) the respondent seeks orders that the identity of Mrs X and all persons related to her be suppressed because Mrs X is a ‘protected person’.

  2. The applicants do not ‘consent’ to the making of this order. They submit that there is ‘no evidence’ or material to support any risk to Mrs X. It would appear, although it is not entirely clear, from what immediately follows, that the objection arises from their misunderstanding that such an order would be made to protect Mrs X from them. (See AS2 at the fifth [unnumbered] page).

  3. Section 64 of the CATA provides the power to the Tribunal to make various orders to restrict disclosure, including disclosure of the name of any person, if the Tribunal is satisfied that it is desirable to do so, including for any reason.

  4. The Tribunal, differently constituted, made such an order on 13 July 2021 in a related matter (Case Number: 2021/00050396) (See at Document 16 – see further below).

  5. On 29 May 2019 the Tribunal (as constituted in the Guardianship Division) made various orders in relation to Mrs X. These included the appointment of the Public Guardian as Mrs X’s guardian and committed the management of her estate to the management of the respondent. (See the orders and the decision record in Case Number: 2018/00049767 at Documents I and 2). This was affirmed on review by the Tribunal on 15 December 2020. (Document 3 at page 39).

  6. The term ‘protected person’ is relatively defined in section 38 of the T&GA. That is a person in respect of whom an order is in force under Part 4.2 or 4.3 of that Act, or the Guardianship Act 1987 (“GA”), that the whole or a part of the person’s estate be subject to management under the T&GA.

  7. The Tribunal’s orders in that case, relevant for current purposes were made under sections 25E and 25G of the GA. (See [78]-[95] of the decision record at Document 2). Mrs X therefore meets the definition of a ‘protected person’.

  8. It is not in dispute between the parties that Mrs X is a protected person. The applicants have put no rational argument or basis on which the suppression order should not be made. Any such order is not meant to be directed as any criticism towards the applicants.

  9. The making of a suppression order in this case is designed, amongst other things, to protect the dignity of an elderly woman whose financial management of her affairs has been taken out of her hands due to cognitive impairment. It is clear that the suppression order made previously by the Tribunal in its Guardianship Division was because Mrs X is a vulnerable person. That vulnerability should not, in the protection of Mrs X, be broadcast to the community at large. She should be allowed, amongst other things, to retain her dignity.

  10. The Tribunal’s power to make suppression orders in section 64 of the CATA can be exercised on the Tribunal’s own motion. I do not understand the statute to require consent by anyone.

  11. I am satisfied that it is desirable to do so in all the circumstances presented. If nothing else, it would be inconsistent now not to make the order given that such orders have been previously made by the Tribunal in matters involving Mrs X. I make the appropriate order.

THE HISTORY OF THE CURRENT DISPUTE

  1. It would appear from the material before the Tribunal that EIV, and as assisted by his mother DYH, has sought that the respondent insist that Ms Y and Mr Z pay rent to him while they are said to reside at the property, since at least early 2020. Several requests of this nature were made.

  2. On 11 March 2020 the Senior Manager Trustee Service of the respondent’s agency, decided not to agree to this. (Document 6). This was affirmed by another Senior Manager on 21 April 2020 (Document 8).

  3. A further such request was made on 12 January 2021 by the applicants in a document which contained a number of other matters (Document 9 at pages 95-96).

  4. On 23 February 2021 the applicants made an application to this Tribunal (Case Number 2021/00302041) concerning the issue of the non- payment of rent. Between 12 January 2021 and the making of the Tribunal’s order on 13 July 2021, the applicants made further requests of the respondent. (23 March 2021 at Document 11, page 108, 1 April 2021 at Document 12, at page 122, 8 April 2021 at Document 13, page 126, and 9 July 2021 at Document 14, page 127). The requests related to a number of other matters as well as the matter of rent payment.

  5. On 13 July 2021 the Tribunal remitted the application to the respondent to make a decision in relation to the request of 12 January 2021 (Document 15 at page 131). The Tribunal found that this had not been dealt with and that it should be (Document 16 at page 141 at [32]). The application was otherwise dismissed.

THE RESPONDENT’S DECISION

  1. On 30 July 2021 the respondent (through relevant and authorised officers) decided to decline the request that Ms Y and Mr Z pay rent to EIV. (Document 18 at pages 147 to 149). Relevantly the following was said:

In coming to a decision, the following information was taken into consideration:

• [EIV] has never lived in the property

• It is estimated that the weekly rental for [the property] is between $575 per week and $650 per week (on the house.com.au)

• [Mrs X] has access to a Level 3 CAT package ($34,500 per annum) which pays for all of her formal supports. It covers respite care in her home, access to the community with support and lawn mowing,

• In our experience, paid home care charges are approximately $30 per hour, plus additional charges for overnight and weekend care. If care is provided to [Mrs X] by a private care agency outside of the funding provided by ACAT at, say 5 hours per day, 7 days per week, this would cost $150 per day, $1,050 per week or $54,600 per annum.

• The rent payable by [Ms Y] and [Mr Z] to the joint owner would be $325.00 per week ($162.50 each per week).

…

Decision:

Based on the above information, including the cost of unpaid care exceeding the claimed rental amount, I have determined that charging [Ms Y] and [Mr Z] rent is not warranted, and decline [DYH’s] requests for rent to be charged to [Ms Y] and [Mr Z].

Decision is pursuant to S59(a) and (g) of the NSW Trustee & Guardian Act 2009 and delegated authority.

  1. The applicants were notified of the decision by letter dated 30 July 2021. (Document 19 at page 150). It must be said that the connection between section 59(a) and (g) of the T&GA and the reasons for decision were not sufficiently explained in the decision record or the letter of notification. Although, a connection may reasonably be inferred.

  2. In any event the applicants sought internal review of this decision on 30 July 2021. (Document 20 at pages 152-158). The decision on the internal review, made on 27 August 2021 was to affirm the earlier decision. (Document 21 at pages 159-163).

  3. In essence this decision to affirm was based on the reasons set out in the initial decision (Document 21, page 159 at ‘1’) and on an application of the general principles set out at section 39 of the T&GA. These were (Document 21 at page 159):

… [Mrs X’s]

(a) welfare and interests are being given paramount consideration,

(b) freedom of decision and freedom of action is being restricted as little as possible,

(c) is being encouraged, as far as possible, to live a normal life in the community.

(d) views in relation to her living arrangements have been taken into consideration,

(e) family relationships and the cultural and linguistic environments is being recognised.

Finally, [Mrs X] is being encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic, and financial affairs and that she is being protected from neglect, abuse, and exploitation.

  1. This certainly addresses the relevant principles set out in the T&GA.

THE DECISION SUBJECT TO REVIEW

  1. As set out above the applicants have made lengthy submissions and provided a large volume of documents in this matter. The submissions range over many complaints. The documents variously before the Tribunal, including those submitted and authored by them, reveal a long list of grievances, including against Ms Y, Mr Z and the respondent’s officers.

  2. However, the focus of the current consideration as to the correct and preferable decision must be only on the respondent’s decision made on 30 July 2021 and as affirmed on 27 August 2021. The question therefore for the Tribunal is to determine the correct and preferable decision in relation to the applicants’ request that Ms Y and Mr Z pay rent to EIV.

  3. That focus was made clear in the notation made by the Tribunal to its orders of 13 July 2021. (Document 15 at page 131). The applicants themselves in the application of 31 August 2021 to the Tribunal, and as that was amended on 19 October 2021, recognise the order made by the Tribunal. A copy of the decision attached to both applications was the decision arising from the internal review conducted by the respondent and dated 27 August 2021.

OTHER MATTERS RAISED BY THE APPLICANTS

  1. It is not necessary, given what is set out immediately above to go into great detail about the applicants’ litany of grievances and list of complaints as variously and vigorously expressed in their submissions and documents provided to the Tribunal. For the sake of completeness, and in the avoidance of doubt, I note the following.

  2. One, the submissions made reference to the matter of ‘ouster’. Although not satisfactorily explained, I understood the complaint to be that the respondent, by his actions, or even consequent on his actions, has effected the removal or extinguishment of EIV’s rights over the property.

  3. To the extent that this is an argument that the respondent should have taken into account, in the making of the decision, that EIV is a co-owner of the property, and the decision has deprived him of rental income, then that is dealt with below. (See for example the reference at AS2 at the seventh [unnumbered] page).

  4. For the remainder, if EIV has been denied access to the property, or otherwise deprived of his right of possession or occupancy of the property by any other person, for example by locks being changed at the property and the like, as alleged, then, while it is entirely a matter for him, he should consider seeking competent and proper advice from a solicitor, who may be able to advise him of any possible and appropriate action.

  5. What is clear for current purposes is that this suite of complaints is outside the scope of the current application as was made clear to the parties by the Tribunal’s notation to its orders made on 19 October 2021. In any event it is beyond the scope of the powers currently exercised by the Tribunal within the jurisdiction given to it for the purposes of the current review.

  6. Two, as the respondent submits, in the absence of any rental agreement between EIV and Ms Y and Mr Z, or other evidence of any agreement with Mrs X, neither EIV, nor his mother, DYH, have satisfactorily explained how any legally enforceable obligation arises, simply from EIV’s co-ownership of the property, such that Ms Y or Mr Z, is legally compelled to pay him rent.

  7. Three, various claims made by the applicants for damages for any prior or current occupation of the property, as in the matter of the claim for payment of past rent, is not for consideration now in this particular application. That matter was not a part of the decision under review. Beyond that it is a matter for EIV and any such occupiers. It is not relevant to the decision under current review.

  8. Four, the allegation that Ms Y and Mr Z ‘stole money’ appears to possibly be the subject of another matter before the Tribunal. (See AS2, at the [unnumbered] fifth page, item 9). It is plainly outside the scope of the current review dealing with the rental request and decision as described above.

  9. Five, the applicants made various submissions that EIV was not consulted prior to the decision made by the respondent, and not given the opportunity to put his arguments to the respondent. In short, these complaints can be properly understood as a denial of procedural fairness or natural justice.

  10. It is the case that in the making of an administrative decision in the exercise of a statutory power, and in the absence of any statutory prohibition or limitation, a person making that request is entitled to procedural fairness at common or general law. The applicant in such a case is entitled to know the case against them and must be given the opportunity to be heard. (Kioa v West (1985) 159 CLR 550 per Mason J at 582).

  11. While the applicants have variously made this allegation it cannot be sustained on the material before the Tribunal in relation to the respondent’s consideration that led to the decision under review.

  12. EIV describes his mother, DYH, as his ‘agent’ in all proceedings and communication with the respondent. (See AS1 at [4]). The material before the Tribunal demonstrates that EIV, at least through DYH, knew the matters raised against his request, and was plainly given the opportunity to make his comments, arguments, and raise his objections. A task exhaustively pursued by his ‘agent’ (DYH) with alacrity.

  13. Six, to the extent that the applicants assert that DYH was denied procedural fairness in the making of the decision, or the decision contained factual errors, it is the case that in the current review the Tribunal is statutorily required to consider what is the correct and preferable decision. That is, to make a fresh decision on the material before it. As such any errors, omissions or defects in the respondent’s decision can in that sense be addressed by the Tribunal. In that regard I note that in the current matter the applicants have been given ample and appropriate opportunity to make submissions. They have done so. They agreed to proceed without an oral hearing.

A THRESHHOLD ISSUE

  1. The jurisdiction of the Tribunal to consider this matter is set out above. In that context, section 55 of the ADRA provides for the making of applications to the Tribunal. Section 55(1) states that an application for an administrative review under the ADRA of an administratively reviewable decision may only be made by ‘an interested person’. That term is defined in the ADRA as: ‘a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review … of an administratively reviewable decision.’

  2. The enabling legislation in the current matter is the T&GA. Section 62(1) of that Act provides that ‘an affected person’ may apply to the Tribunal for review, under the ADRA, of a decision that is made in connection with the exercise of the respondent’s functions under Division 1 of Part 4.5 of the T&GA (s.62(1)(a)), and is of a class of decision relevantly prescribed (s.62(1)(b) and regulation 45 of the Regulations to the T&GA. The subject decision complies with this requirement.

  3. Section 62(2) of the T&GA defines the term ‘affected person’. DYH and EIV do not meet that part of the definition at section 62(2)(a) or (b). Sub-section 62(2)(c) provides for: ‘any other person whose interests are, in the opinion of the … Tribunal, adversely affected by the decision. I accept that given his co-ownership of the property EIV is such a person.

  4. The situation however is not as clear with DYH which raises the question as to whether she has standing to make an application in this matter. That is, should she be permitted to be an applicant.

  5. In all their submissions and documents there is nothing from DYH, or for that matter from EIV, to even suggest that DYH has some material, proprietary, beneficial or vested interest or right in the property in the requisite legal sense. DYH makes clear in her submissions that her interest is because of her son and what she alleges he has been wrongfully denied. There is nothing from her to say that she has any interest, in the sense of advantage to herself. Importantly, and in contrast to what is alleged in relation to EIV, she seeks nothing for herself. The payment of rent is claimed for her son and only her son.

  6. Plainly she is interested in this matter because of her maternal concern for her son, and given some of the material before the Tribunal, her dislike of her siblings and the ongoing dispute with them. (See for example the reasons for decision of the Tribunal in its Guardianship Division: ‘There is significant conflict between family members.’ Document 2 page 9 at [4].) But the question still remains as to what legal right she may have such that it can be said that her ‘interests’ or rights are adversely affected in the requisite sense.

  7. The question of standing, as is the question of jurisdiction, is an important threshold question, of itself, in any matter. Further, in matters of this type there is always the possibility of costs being sought against an unsuccessful applicant (See section 60(2) of the CATA). In addition, I note that there is at least one other matter before the Tribunal to be heard on 24 February 2022 involving the current applicants, the current respondent, Mrs X and Ms Y. (Case Number: 2021/00302041).

  8. In any event, even if DYH were not an applicant in this matter that would not deprive her of the opportunity to assist her son by way of making submissions on his behalf. In the same way that she has done now, albeit as an applicant. She could still act as his ‘agent’.

  9. However, it is not appropriate now to consider this matter further for the purposes of the current review. That is particularly as DYH was not previously made aware of this issue and given the opportunity to be heard. Further, the respondent has not raised this issue. It is not appropriate that any finding or order be made that DYH withdraw or cease to continue as an applicant in this matter.

CONSIDERATION

  1. The thrust of the applicants’ submissions (and with reference generally to some of the documents they provided) is that the respondent’s decision has deprived EIV of his interests and rights. In particular, and relevantly, that as a co-owner of the property, he should be paid rent by those who occupy it and are not co-owners. While there is much heat, emotion and hyperbole in the submissions (and their attached documents), their essence is that the decision that they do not pay rent is contrary to what should be the correct and preferable decision.

  2. The respondent, and now by extension the Tribunal, is statutorily bound to put the interests of Mrs X as the central ‘paramount’ consideration in the determination of the question of whether rent should be paid by Ms Y and Mr Z. EIV’s interests are statutorily subordinate to that.

  3. The term ‘paramount’ is not defined in the T&GA. Its ordinary dictionary meaning includes: ‘chief in importance; supreme; pre-eminent’. (Macquarie Dictionary at In short, Mrs X’s interests are more important than anything else. That does not mean that EIV’s interest should be totally ignored. However, it does mean that where his interest is in conflict with, or affects, or impinges adversely upon, Mrs X’s interest, then her interests are to be given far greater, and ‘paramount’, weight. To put it bluntly, and colloquially, it is not all about EIV as the applicants’ submissions would have it. It is in fact, of ‘paramount’ importance, about Mrs X.

  4. In all of their submissions the applicants have not shown, let alone satisfactorily so, that it is in Mrs X’s interests that Ms Y or Mr Z pay rent to EIV while they live at the property. At its highest, their submissions emphasise that EIV was denied his legal rights as a co-owner of the property. For example, they argue (see for example AS2 at the fourteenth [unnumbered] page at item [30]):

The Tribunal must review the rental and determine whether they [in context the respondent’s relevant decision makers] had obligations under the Act as decision makers to comply with the duty to mitigate and please both co-owners of their legal rights.

  1. The respondent has no such duty to EIV under the T&GA. As is clear, and as set out above, the respondent’s duty under that Act is in a paramount sense to the interests of Mrs X. The applicants have not demonstrated where there is any duty arising from the T&GA ‘to mitigate and please’ EIV on any equal footing with the interests of Mrs X.

  2. It is important to note that in their submissions the highest point of the stated interest in the welfare and interests of Mrs X (who is after all their mother and grandmother respectively) is as a co-owner of the property with EIV. This fixation on co-ownership and exclusive focus on EIV’s claimed ‘legal property’ (see for example AS2 at the thirteenth [unnumbered] page) and other rights, ignores the clear statutory obligation on the respondent, and now for immediate purposes, the Tribunal.

  3. By decision, and orders, made by this Tribunal on 29 May 2019, the Public Guardian (‘PG’) was appointed the guardian of Mrs X. (Documents 1 and 2). That decision stands for current purposes. On 20 November 2020 the PG decided not to accept DYH’s proposal for an accommodation plan for Mrs X proposed by DYH. The PG notified DYH of this in its letter of 20 November 2020. (Document 22 at page 170).

  4. The reasons for this decision were explained as follows:

We made this decision because it is [Mrs X’s] will and preference that she remain living in her current accommodation. In addition, the report received by our office from [a doctor] on 18/11/20 recommends that [Mrs X’s] current accommodation situation appears to be suitable and there is no need for her to move into high-level care considering the support she has maintaining her at home.

  1. It cannot be said that this decision was unreasonable. It relied on professional advice. Nor do the applicants appear to take issue with it in these proceedings. The thrust of their submissions is the payment of rent to EIV on the basis that Ms Y and Mr Z live at the property (of which EIV is a co-owner) with Mrs X. Relevant to the current consideration is the assumption in their argument that Mrs X will continue to live at the property.

  2. The fact that Mrs X lives at the property is the starting point for the current consideration as to what is the correct and preferable decision in the matter of the payment of rent. The fact that it was her will and desire to remain in the property is of paramount importance.

  3. The material before the Tribunal reveals that Mrs X is elderly, vulnerable and has some cognitive impairment. The applicants do not dispute this in their submissions. In fact, the material before the Tribunal reveals that DYH proposed that she be moved to ‘high level care’ (see [69] above). Mrs X therefore requires assistance to continue to live at the property, her home.

  4. The material before the Tribunal reveals that she is in receipt of a ‘Level 3 ACAT package’ (see Document 31 at pages 185-186). The information before the Tribunal is that this provides important support for her. (Document 21 at page 162 at point 6 of that page). This includes respite care at home, access to the community with support and lawn mowing. However, she still requires additional in house, or at home, support.

  5. The options for such support were considered by the respondent in the decision of 30 July 2021 (Document 18, page 148 at the fourth dot point), and affirmed on internal review (Document 21, page 159 at [1]). The applicants’ response to this now (AS2 at the fourteenth [unnumbered] page at item [30.a]) is to variously assert ‘an over surplus of care given to’ Mrs X, their mother and grandmother respectively.

  6. The applicants have sought to introduce the matter of Centrelink payments to Ms Y and Mr Z in relation to the care of their mother and make allegations that they ‘depleted’ Mrs X’s bank accounts. The applicants have not provided any satisfactory corroborative evidence to support these allegations and claims.

  7. Specifically in relation to the calculations made by the respondent, the applicants submit that these contain, variously, ‘incorrect assumptions and false information’, are ‘unreasonable’ and ‘unrealistic’. Again, the basis for this appears to be that the calculations are not reliable because they deny EIV his ‘property rights’, and deny that there is an ‘onus and responsibility to pay’ EIV ‘for the loss of rent.’ (AS2 at the fifteenth [unnumbered] page at ‘c’).

  8. In my view this, again, exemplifies the stream of consciousness approach to the drafting of the applicants’ submissions. In particular, the attempt to assert ‘rights’ that ignore the relevant statutory context in this matter, to make serious allegations without demonstrable foundation and to obscure the appropriate focus on the relevant statutory obligations.

  9. The matter of these calculations can be simply addressed. Even if some mathematical error has been made, which in any event the applicants have not satisfactorily established, what remains is the following. Mrs X requires additional support to remain in her home in compliance with her wishes. Whatever the detail of the cost of additional care, an external private provider will cost more than if the care is provided by Ms Y and Mr Z, who in the absence of anything to the contrary from the applicants, do not charge for this care.

  10. Even if Ms Y and Mr Z are in receipt of Centrelink payments, the applicants have not established that the addition of these to the relevant calculation would exceed the cost of an external care provider. In this regard I note that the respondent has relied on the experience and investigation of his officers as to the costs of such external care. The applicants have not provided any evidence to dispute the experience and expertise of these officers and, nor beyond assertion, have they otherwise demonstrated that this is not the case.

  11. In all the circumstances I accept the calculation as to external care provision made by the respondent’s officers and adopt them for the purposes of this decision. In that light I agree with the finding made by the respondent’s internal reviewer on 27 August 2027 that the ‘…current care arrangements in place for [Mrs X] is [sic:are] financially viable for her and it appears to be advantageous for her as well.’

CONCLUSION

  1. The critical statutory obligation in this matter is to put the interests of Mrs X as the paramount consideration in answering the question as to what the correct and preferable decision is as to whether Ms Y and Mr Z should pay rent to EIV. Unlike the respondent, the applicants, through their submissions appear not to understand this, or have chosen to ignore it.

  2. Mrs X is an elderly woman who exhibits some cognitive decline. She has expressed a desire to remain in her own home, which is situated at a property co-owned with her grandson, EIV. To do this she requires support and assistance. That assistance can be, and is being, provided by, and through, her guardian, the Public Guardian. But it is not enough to maintain the necessary care. That additional care is being provided by her children, Ms Y and Mr Z.

  3. EIV, and his mother DYH, insist that Ms Y and Mr Z pay him rent while they live at the property of which he is a co-owner. For the reasons set out above the correct and preferable decision is that they not be required to pay rent so that the care arrangements in place for Mrs X may continue and she is able to remain in her home as is her desire. If EIV and DYH are otherwise aggrieved by the actions of Ms Y and Mr Z, and the respondent, then this application was not the appropriate vehicle by which they could seek satisfaction or conclusion to their complaints.

  4. I will make an order affirming the respondent’s decision made on 30 July 2021 and affirmed on 27 August 2021, and dismiss the application made to the Tribunal on 31 August 2021, and as amended on 19 October 2021.

ORDERS

  1. The decision under review is affirmed.

  2. The application made on 31 August 2021 and amended on 19 October 2021 is dismissed.

  3. The names of the parties in this matter, the protected person, and all persons related to her, are not to be disclosed.

**********

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 January 2022

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4

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29
Kioa v West [1985] HCA 81