DYH v NSW Trustee and Guardian

[2021] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DYH v NSW Trustee and Guardian [2021] NSWCATAD 200

Hearing dates:

On the papers

Date of orders:

13 July 2021

Decision date:

13 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

(1) The application is remitted to the NSW Trustee and Guardian to make a decision in respect of the request of 12 January 2021 that Mr X and/or Ms X pay rent while they reside at the property owned by Mrs X and EIV as tenants in common.

(2) The application is otherwise dismissed.

Catchwords:

ADMINISTRATIVE LAW — administrative review — applicant seeking review of decisions made by respondent — application by respondent for dismissal — whether decisions in fact made by respondent in the exercise of its functions as financial manager

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

DYH (First Applicant)
EIV (Second Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Applicants (self-represented)
NSW Trustee and Guardian (Respondent)

File Number(s):

2021/00050396

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the names of the applicants and the protected person are not to be disclosed.

REASONS FOR DECISION

Background

1. DYH and EIV are the daughter and grandson of a woman who I will call Mrs X for the purposes of this decision. The NSW Trustee and Guardian manages the financial affairs of Mrs X pursuant to orders made by the Guardianship Division of this Tribunal in 2019 which were confirmed in December 2020. The Public Guardian is guardian for Mrs X with access, accommodation, health care, medical and dental consent, services and legal services functions having been appointed on the same date that the 2019 financial management order was made.

2. Mrs X lives in her home in Sydney which she owns equally as tenant in common with her grandson, EIV. I understand that Mrs X’s husband from whom she is separated and who no longer lives in Australia, transferred his share of the property to EIV in 2019. Mrs X has three children and the NSW Trustee and Guardian states that her daughter Ms X and her son Mr X (DYH’s sister and brother) live with her in the property in Sydney, although DYH and EIV state that Ms X lives elsewhere in Sydney. Ms X is considered to be her mother’s primary carer and Mr X is also said to provide some care. It is reported that there is a good deal of animosity between various members of the family.

3. The following sequence of events is drawn from the limited material before the Tribunal. Unfortunately, neither party has filed relevant emails sent by DYH and EIV to the NSW Trustee and Guardian in January, February, March and April 2020.

4. On 25 November 2019 the NSW Trustee and Guardian increased the allowance provided to Mrs X from her account from $100 per week to $250 per week. It seems that on 28, 29 and 30 January 2020 and 3 February 2020 DYH and EIV sent emails to the NSW Trustee and Guardian regarding the management of Mrs X’s financial affairs. As far as I can ascertain the emails raised a number of issues, including:

• that Ms X and Mr X should be evicted from the property and Mrs X should downsize to a smaller property or enter an aged care facility;

• that Mr X should pay $450 per week rent to reside in the property (although it is not clear to whom payment should be made);

• disagreement with the decision to pay an allowance of $250 per week to Mrs X;

• concerns about the payment of water and council rates and utilities;

• then current legal proceedings involving Mrs X; and

• allegations about misappropriation of Mrs X’s funds by Ms X and Mr X.

5. The emails appear to have been treated as a complaint and were addressed in a letter to DYH and EIV dated 11 March 2020. In that letter:

• it was stated that the Public Guardian has decided that Mrs X is to remain living at home and supports Ms X and Mr X staying in the property to care for their mother; in these circumstances, the NSW Trustee and Guardian does not agree that Mrs X should downsize or that Ms X and Mr X should be evicted from the property;

• it was further stated that, given the care arrangements, the NSW Trustee and Guardian does not agree that Mr X pay rent of $450 per week;

• brief reasons for why Mrs X’s allowance was increased to $250 per week were outlined and DYH and EIV were advised that if they still disagree with that decision they should seek internal review (presumably under the Administrative Decisions Review Act 1997);

• the arrangements for the payment of property outgoings and utility costs were outlined;

• it was stated that the NSW Trustee and Guardian does not consent to proceedings to “evict” Ms X and Mr X; and

• the allegation that Ms X and Mr X had misappropriated funds was noted and DYH and EIV were asked to provide further information and records or other evidence to substantiate the claims.

6. It appears that DYH and EIV then sought internal review of the decision to increase Mrs X’s allowance to $250 per week and of the complaint response dated 12 March 2020.

7. In a “decision” dated 21 April 2020 the internal reviewer:

1. Affirmed the decision to increase Mrs X’s allowance to $250 per week; and

2. Affirmed the complaint response, including:

1. not to evict Ms X and Mr X;

2. to allow Mrs X to remain in her own home in line with the Public Guardian’s decision;

3. not to charge Ms X and Mr X rent in lieu of care costs;

4. to increase Mrs X’s allowance to $250 per week; and

5. to investigate allegations of misappropriation on receipt of specific information or evidence by DYH and EIV to substantiate claims.

8. DYH and EIV were advised of their right under s 55(1) of the Administrative Decisions Review Act to seek review by the Tribunal of the decision within 28 days. No such review was sought.

9. On 12 January 2021 DYH and EIV wrote to the NSW Trustee and Guardian putting forward a “proposal” which included that rental income of no less than $500 per week be paid by Mr X and/or Ms X to EIV. The letter also noted that Ms X and Mr X were not contributing to bills and went on to state that they (DYH and EIV) had not been provided with the investigations into money stolen from Mrs X’s accounts by Ms X and Mr X.

10. On 17 February 2021 the NSW Trustee and Guardian wrote to DYH and EIV stating, among other things:

“Your correspondence raised that weekly rent of $500.00 should be paid to [EIV]. This matter was addressed in our complaint response to you dated 11 March 2020. Our letter confirmed that given the carer arrangements, and that [Mrs X] is apparently content in her current environment, the trustee services team does not agree on [Mr X] paying $450.00 per week rent. If the co-owner [EIV] has a different view, he has the option to seek legal advice.

You requested an escalated review of our complaint response dated 11 March 2020 and requested an internal review of the decision regarding [Mrs X]’s allowance payment. Our internal review outcome and escalated complaint response to you dated 21 April 2020, confirmed trustee services position not to seek rent from [Mr X] in lieu of the care provided to [Mrs X].”

11. In relation to documents such as council rates and insurance documents, the letter stated that such documents would be sent to EIV in due course as he is an owner of the property. The letter also stated that an investigation into withdrawals from Mrs X’s accounts had been delayed by the length of time taken to obtain records from an overseas bank. The letter foreshadowed that the investigation would be carried out when the relevant bank statements were received.

12. On 23 February 2021 DYH and EIV lodged an administrative review application with the Tribunal seeking review of the following decisions:

• review of rental to be paid to owner of the property by [Ms X] and [Mr X];

• review of invoices and documents to be provided to the owner [EIV], insurance policy, water bills, council bills, all property bills; and

• review and resolution of investigation of money stolen.

13. The NSW Trustee and Guardian has sought an order under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that the proceedings be dismissed on the grounds that they are frivolous or vexatious or otherwise misconceived or lacking in substance.

14. I note that at a directions hearing on 20 April 2021 the Tribunal determined that the application for dismissal is to be determined in the absence of the parties (see s 50 of the CAT Act). Directions were also made for the parties to provide submissions in relation to the application for dismissal.

Submissions

15. The NSW Trustee and Guardian’s primary submission is that the letter of 17 February 2021 is not an administratively reviewable decision. In its submissions the NSW Trustee and Guardian draws a distinction between its functions as a financial manager and decisions it makes in respect of the financial management of Mrs X’s estate pursuant to the financial management order. As I understand the submissions, the NSW Trustee and Guardian is of the view that the letter of 17 February 2021 was merely responding to concerns which had been raised by DYH and EIV in their letter of 12 January 2021 and it did not in fact make any decisions in the exercise of its role as financial manager for Mrs X.

16. NSW Trustee and Guardian acknowledges that DYH and EIV are “affected persons” within the meaning of s 62(2) of the NSW Trustee and Guardian Act 2009 and would therefore have a right to seek review of decisions made in the exercise of its functions as financial manager for Mrs X. However, in its view, the letter of 17 February 2021 does no more than to outline previous decisions which had been made and respond to complaints raised by DYH and EIV. This letter, it is said, was provided in accordance with the functions of the NSW Trustee and Guardian as financial manager and did not constitute the making of a decision regarding rent.

17. In particular, the NSW Trustee and Guardian submits that:

1. In relation to rent to be paid by Ms X and Mr X, a decision was made on 11 March 2020 and internally reviewed on 21 April 2020. No external review of that decision was sought and the letter of 17 February 2021 simply informed DYH and EIV of the decision which had previously been made.

2. In relation to documents to be provided to EIV regarding property expenses, these have in fact been provided and this aspect of the application is therefore lacking in substance.

3. In relation to the investigation of money allegedly stolen, no decision has been made regarding the allegations of misappropriation. As no decision has been made, there is no reviewable decision before the Tribunal and it therefore lacks jurisdiction.

18. In addition, the NSW Trustee and Guardian submitted that, if the letter of 12 January 2021 is considered to be a new request to charge rent of $500 per week to Ms X and Mr X (as opposed to $450 per week), this request could be considered and a new decision made. If that is the case, this application should be dismissed or remitted to the NSW Trustee and Guardian to make a new decision.

19. DYH and EIV state that the NSW Trustee and Guardian cannot make decisions about rental for a property owner (presumably meaning an owner other than the person whose finances are under management, which in this case is EIV). They state, however, that the Tribunal can review a decision to deny rent to the property owner (again, presumably the co-owner, EIV). They also state that their request that rent be charged at $500 per week is a new request (the previous request being for $450 rent per week) and no decision has been made in relation to this new request.

20. The submissions by DYH and EIV in relation to the two other matters the subject of the application – the property expenses and the investigation into alleged misappropriation of monies – do not deal directly with the jurisdictional question, although indicate that the property expenses documents have been sent to them.

21. In their submissions DYH and EIV also refer to the decision which was made and affirmed by the NSW Trustee to raise Mrs X’s allowance to $250 per week. They do not however appear to be seeking to amend their application to include review of that decision. In any event, any such application is considerably out of time and no application to extend time has been made.

Is there a reviewable decision before the Tribunal?

22. Section 55 of the Administrative Decisions Review Act makes plain that the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”.

23. As noted by the NSW Trustee and Guardian in its submissions, the Tribunal has jurisdiction to review decisions made by the NSW Trustee and Guardian in connection with the exercise of its functions under the NSW Trustee and Guardian Act. The issue is therefore whether the letter of 17 February 2021 contains any decision which can be said to be a decision made in the exercise of the functions held by the NSW Trustee and Guardian under its governing legislation.

24. While I understand the approach taken by the NSW Trustee and Guardian in its letters of 21 April 2020 and 17 February 2021, the letters do not distinguish between decisions made in the exercise of the functions held by the NSW Trustee and Guardian in managing Mrs X’s estate and a general response to concerns raised by DYH and EIV about the management of the estate. Some matters raised by DYH and EIV have initially been treated as a complaint but have also been characterised as decisions upon internal review. This, I think, has led to some confusion in the approach taken to responding to matters raised in correspondence from DYH and EIV.

25. In relation to the specific matters raised in the current application by DYH and EIV for review of certain “decisions” by the Tribunal, it is convenient to deal with the matters of property expenses and any investigation into alleged misappropriation of money first before turning to the rent issue.

Property expenses

26. As I understand it, EIV has asked for some time that he, as co-owner of the property, be provided with bills, invoices and other documents such as insurance policies. He is clearly entitled to these as co-owner. The NSW Trustee and Guardian, as is acknowledged by DYH and EIV in their submissions, is now providing these documents. There is therefore no utility in this aspect of the application being pursued and in respect of this issue the application is lacking in substance.

Investigation into misappropriation

27. DYH and EIV ask that there be a “review and resolution” of the “investigation of money stolen”. It appears that they have alleged for some time that Ms X and Mr X have misappropriated money from Mrs X’s bank accounts in Australia and overseas. In their submissions they indicate that they are primarily concerned that the NSW Trustee and Guardian has not finalised any investigation into the allegations. They ask that the Tribunal make an order requiring the NSW Trustee and Guardian to provide a complete and final report on the issue of the stolen money.

28. Section 6 of the Administrative Decisions Review Act provides that a “decision” includes any of the following:

1. making, suspending, revoking or refusing to make an order or determination,

2. giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

3. issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

4. imposing a condition or restriction,

5. making a declaration, demand or requirement,

6. retaining, or refusing to deliver up, an article,

7. doing or refusing to do any other act or thing.

29. It is clear that the NSW Trustee and Guardian is taking steps to investigate the allegations of misappropriation (albeit at a pace not in conformity with the expectations of DYH and EIV). The letter of 17 February 2021 does no more than advise that some delays have been encountered in obtaining records from overseas. I agree with the submissions made by the NSW Trustee and Guardian that no decision has been made regarding the allegations of misappropriation. Nor has any decision been made to refuse to investigate the allegation or to take any action. As a consequence, there is no decision capable of being reviewed by the Tribunal. The Tribunal therefore lacks jurisdiction to review the issues raised concerning the alleged misappropriation of money. This aspect of the application must be dismissed.

Charging rent

30. In its letter of 11 March 2020 the NSW Trustee and Guardian, in response it seems to the emails sent by DYH and EIV, stated that it did not agree that Mr X pay rent of $450 per week. I note that the letter in general is not framed as being a decision or decisions made in the exercise of the NSW Trustee and Guardian’s functions as financial manager for Mrs X. Indeed, the letter indicated that the only “decision” that had been made was the decision to raise Mrs X’s allowance to $250 per week. The letter advised that DYH and EIV could seek review of that decision. The letter stated that a fact sheet on reviews was enclosed, but that fact sheet is not before me.

31. In any event, it seems that, as set out above, DYH and EIV sought internal review of the decision to increase Mrs X’s allowance and also sought review of the responses to the range of other issues canvassed in the letter of 20 March 2020. The letter of 21 April 2020 stated that the decision in relation to the allowance was affirmed. As set out above at [7], the reviewer also affirmed “the complaint response dated 12 March 2020”, including not to charge rent. It is not clear whether the NSW Trustee and Guardian was making a decision within the meaning of s 6 of the Administrative Decisions Review Act in the exercise of its functions as financial manager for Mrs X or whether it was merely stating that its earlier response to the complaint remained unchanged.

32. In relation to the more recent request of 12 January 2021 by DYH and EIV that Mr X and/or Ms X pay rent of $500 per week, the primary position of the Trustee is that a decision was made on rent in the 2020 correspondence and the letter of 17 February 2021 merely reiterated the substance of that decision. Even if it is accepted that the letters of 20 March 2020 and 21 April 2020 constitute a “decision” on paying rent, a new request has in fact been made by DYH and EIV that the NSW Trustee and Guardian require Mr X and/or Ms X to pay rent of $500 per week. That request has not been dealt with to date but should be.

33. The letter of 12 January 2021 also indicates that the rent of $500 is to be paid to EIV as co-owner. In respect of a person whose estate is managed by the NSW Trustee and Guardian, the NSW Trustee and Guardian has all the functions the person has and can exercise, or would have and could exercise if under no incapacity (s 57). It seems that the earlier decisions on rent (if indeed they are decisions) were decisions that Mrs X would not require her carers to pay rent in lieu of care costs. Whether the financial manager has the power to require a person to pay rent to a person other than the person whose estate is under financial management is an issue which will need to be addressed by the NSW Trustee and Guardian. It may be that the NSW Trustee and Guardian should seek some clarification from EIV if that is what he intended in the request of 12 January 2021.

30. The most sensible course is to remit the matter to the NSW Trustee and Guardian to make a decision in respect of the request of 12 January 2021 for the payment of rent.

Orders

1. The application is remitted to the NSW Trustee and Guardian to make a decision in respect of the request of 12 January 2021 that Mr X and/or Ms X pay rent while they reside at the property owned by Mrs X and EIV as tenants in common.

2. The application is otherwise dismissed.

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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: 13 July 2021