FKS v Nswtag

[2024] NSWCATAD 19

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FKS v NSWTAG [2024] NSWCATAD 19

Hearing dates:

17 November 2023

Date of orders:

17 January 2024

Decision date:

17 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member

Decision:

The decision of the NSW Trustee and Guardian, dated 2 August 2022, to sell the property of FJI is affirmed.

Catchwords:

ADMINISTRATIVE LAW

MERITS REVIEW - where NSW Trustee and Guardian decided to approve the sale of a property of a person who is the subject of a financial management order where the son, who lives in the property, disagreed with the decision to sell the property – paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Guardianship Act 1987 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FKS (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
FKS (self-represented)
R Stormont (Solicitor NSW Trustee and Guardian) (Respondent)

File Number(s):

2022/00280936

Publication restriction:

The publication of the name of the applicant or any other person mentioned in these Reasons for Decision is prohibited pursuant to Section 64(1)(a) of the Civil and Administrative Tribunal Act 2014 (NSW).

REASONS FOR DECISION

Background

1. FJI is an 89-year-old woman, who lives in an aged care facility, having been diagnosed with dementia, anxiety and other comorbidities. She previously lived with her son, FKS, who is the applicant in this matter, in a home which she owns. FJI also has a daughter.

2. The appointment of the Public Guardian has been reviewed and renewed and the Public Guardian remains appointed to make decisions, particularly about FJI’s accommodation, which is the decision-making power relevant for the purposes of this matter.

Guardianship

3. On 16 July 2021, the Guardianship Division of this Tribunal appointed the Public Guardian as FJI’s guardian, to make decisions about her accommodation, her access to health care, her access to services, and to provide or withhold consent to medical and dental treatment. The Guardianship Division also gave the Public Guardian the power to make decisions about the use of restrictive practices.

4. On 15 October 2021, the Public Guardian decided that FJI should move from her own home and live permanently in a residential aged care facility.

5. FKS (the applicant) applied for the administrative review of the Public Guardian’s decision.

6. On 17 August 2023, the Tribunal affirmed the Public Guardian’s decision that FJI should reside permanently at the aged care facility.

7. The applicant has advised that he has applied to the Appeals Division of this Tribunal for an appeal of the decision of the Tribunal, dated 17 August 2023. No evidence of this was provided and that matter, if it has been commenced, is yet to be determined.

Financial management

8. On 25 August 2021, the Guardianship Division of this Tribunal appointed the NSW Trustee and Guardian (the respondent) to manage FJI’s estate.

9. On 15 May 2022, the respondent made the decision that FJI’s property should be sold to pay for her accommodation and other expenses.

10. The decision to sell FJI’s property was affirmed by an internal review of the decision, dated 2 August 2022, which the applicant asks the Tribunal to review.

11. The applicant is the son of FJI.

12. On 20 September 2022, the Tribunal received the application, dated 3 September 2022, for the review of the respondent’s reviewable decision, dated 19 May 2022. The grounds for the application are difficult to discern, due to the way in which the application has been drafted.

13. The applicant submitted that the respondent’s decision was not the correct and preferable decision, because he believes that his mother has the right to return home and if the property were to be sold, this opportunity would be denied to her.

LEGAL CONTEXT

14. The Tribunal has jurisdiction to review decisions, by virtue of Section 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and Sections 6, 7 and 9 of the Administrative Decisions Review Act 1997 (ADR Act).

15. Section 6 of the ADR Act defines “decision” to include any of the following:

1. “(a)   making, suspending, revoking or refusing to make an order or determination;…

2. doing or refusing to do any other act or thing”.

16. Section 62 of the NSW Trustee and Guardianship Act 2009 (NSW) (TAG Act) provides that an affected person may apply to the Tribunal for an administrative review under the ADR Act of a decision of the respondent in this case that:

1. is made in connection with the exercise of the respondent’s function under this Division, and

2. is of a class of decision prescribed by the regulation for the purposes of this section.

17. It is not contested that the applicant is an affected person nor that the decisions made by the respondent in connection with its functions in the management of the estates of a protected person are reviewable by the Tribunal.

18. The issue for the Tribunal is whether the decision to sell FJI’s property is the “correct and preferable decision” (ADR Act Section 63).

19. In order to decide whether that is the case, the Tribunal must observe the principle in Section 39 of the NSW TAG Act which includes the provision that the welfare and interests of FJI should be given paramount consideration.

Documents and exhibits

20. The respondent tendered a bundle of documents filed pursuant to the Section 57 of the ADR Act (Section 55 bundle).

21. There was no objection to the Tribunal considering all of that material.

22. The Tribunal also considered submissions of the applicant, dated 2 May 2023, 13 May 2023, and 13 October 2023, in addition to submissions of the respondent, dated 16 May 2023 and 6 November 2023.

FACTUAL FINDINGS

23. In separate proceedings, the Tribunal has previously determined that FJI is an elderly woman living with dementia, anxiety and other health issues. Her treating Geriatrician, Professor Potter, reported to the Guardianship Division in early 2021 that FJI has severe dementia, likely of Alzheimer’s aetiology that was progressive.

24. There is no evidence to persuade the Tribunal that it should alter its previous findings in relation to that issue.

25. It is not disputed that FJI entered respite care in mid August 2021 and that the Public Guardian decided that she should enter residential aged care on a permanent basis on 15 October 2021. FJI has, therefore, lived in an aged care facility for over two years.

26. The statement of advice, dated 27 October 2023 of Glenn Kirk, authorised representative of the respondent, sets out FJI’s financial circumstances, as at that date. This states the following:

• that FJI’s property is valued at $1.4 million and she has limited additional funds (under $10,000.00) in the respondent’s trust account and a Commonwealth Bank account;

• that FJI is required to pay a Refundable Accommodation Deposit (RAD) of $550,000.00 to the aged care facility and that she is paying a Daily Accommodation Payment (DAP) of $60.42 per day, and is paying the maximum permissible interest rate of 4.01% because her RAD has not been paid;

• that FKS lives in the property and does not pay rental income;

• the property will become an assessable asset for Centrelink purposes from 21 October 2023. This will mean that FJI’s Centrelink pension payments will cease from 21 October 2023, because her assets will be deemed too high for her to be eligible for the pension;

• FJI’s accommodation fees are nearly $60,000.00 in arrears. She also has council rate arrears of approximately $3,500.00;

• due to the cessation of FJI’s pension, her annual cash flow shortfall is estimated to be approximately $92,000.00;

• FJI will have insufficient financial assets or cash flow to pay her outstanding liabilities or fund her accommodation;

• to continue residing in the property, FKS would need to make the following contributions to the respondent’s trust account:

1. lump sum payment to pay outstanding liabilities of approximately $62,200.00;

2. annual lump sum payment of the cash flow shortfall of $92,100.00;

3. additional contributions when required for future unexpected expenses, including property repairs.

27. For this reason, Mr Kirk recommended that FJI’s property be sold and that the outstanding RAD and other liabilities be paid from the property sale proceeds.

28. The applicant does not dispute the information contained in that statement of advice. However, he maintains that FJI should not have the liability to pay RAD or accommodation fees and that her property should not be considered as an asset by Centrelink, because it was not her choice to enter aged care. Furthermore, he submitted that FJI may return home. This is the primary basis for his view that the respondent’s decision is not correct and preferable.

REQUEST FOR AN ADJOURNMENT

29. The applicant asks the Tribunal to adjourn this hearing to review the reviewable decision. The applicant submits that he has applied for an appeal of the Tribunal’s decision dated 17 August 2023. He submitted that the outcome of the appeal may result in a decision being made that his mother can return to live at home. He submitted that the Tribunal ought not to proceed with this hearing until such time as the Appeal Division has considered that application.

30. Pursuant to Section 51 of the Civil and Administrative Act 2013 (CAT Act), the Tribunal may adjourn proceedings. When deciding whether to do so, the Tribunal must consider the guiding principle of the CAT Act, which is to provide the just, quick and cheap resolution of the issues in the proceedings (subsection 36(1)).

31. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered (Section 38(5) CAT Act).

32. The applicant did not provide evidence to the Tribunal that he has filed any application to the Appeals Division of the Tribunal. However, he submitted that FJI would be disadvantaged if this hearing proceeded and resulted in a decision affirming the respondent’s decision because she would not have a home to which she could return.

33. The respondent submitted that the Tribunal ought to give that submission little weight.

34. Ms Stormont submitted that even if FJI were to return home, she would still have debts requiring the sale of the property. She submitted that the prospect of FJI returning home is remote, in view of the fact that she has lived in an aged care facility for over two years.

35. Ms Stormont also submitted that FJI has sufficient funds to meet her current needs and that this is placing her at a disadvantage and that this is contrary to the requirement to uphold her best interests as paramount.

36. I considered the adjournment application and refused it. There is no dispute that FJI has considerable outstanding liabilities and that she no longer has a source of income.

37. Without pre-empting any decision of the Appeals Division, I accept the respondent’s submission that even if FJI were to return home, she would be unable to pay her debts which would likely result in the sale of the property, in any event.

CORRECT AND PREFERABLE DECISION

38. The applicant’s submissions are set out above. He also submitted that, if given the opportunity, he could help pay his mother’s debts which could avoid the sale of the property.

39. He conceded that he last paid rent in 2019. He added that he has considered approaching the Home Equity Access Scheme to raise funds with which to pay FJI’s debts. He conceded that he has not paid his mother’s rates because he thought the respondent was doing so. He also conceded, when questioned, that he has not sought any financial advice in relation to the viability of his proposal. He gave evidence that he is the recipient of a disability support pension.

40. I asked the applicant whether he had evidence to persuade the Tribunal that he could realistically pay his mother’s debts, or help her financially, when he has not done so to date. He responded: “I never thought of it. It has been overwhelming”.

41. Ms Stormont submitted that the applicant’s submissions are unrealistic. She reiterated that FJI no longer receives a pension and that the respondent has no cash flow from which to pay her expenses or meet her needs. Furthermore, there is no money to pay her property rates or insurance which means that her primary asset is at risk. She asked the Tribunal to find that the respondent’s decision is the correct and preferable one and is manifestly in the best interests of FJI.

42. Ms Stormont added that the dispute in relation to the sale of the property has been on foot since September 2022. The respondent has asked the applicant for a proposal as to how he can pay off the arrears but he has not provided a proposal apart from accessing the Home Equity Access Scheme.

43. Ms Stormont submitted that only a person who is entitled to Centrelink may have the benefit of an advance pursuant to the Home Equity Access Scheme. FJI no longer receives Centrelink and would not be entitled to any such advance. Even if she were, Ms Stormont submitted that the maximum FJI could hope to raise would be $15,000.00. She submitted that the applicant’s submission is, therefore, unrealistic and submitted that the Tribunal should give it little weight.

44. The respondent also submitted that it is most unlikely that FJI will return home.

45. Ms Stormont referred to evidence submitted by the applicant that confirms that he has credit card debt and asked the Tribunal to find that the suggestion that he is in a position to repay FJI’s debt is unrealistic.

46. The applicant disagreed with this, however, he did not provide evidence to persuade the Tribunal that he has obtained appropriate financial advice in relation to the prospect of him paying debt.

REASONING AND CONCLUSION

47. FJI is an elderly woman who has considerable debts and no income. She has a major asset, which is currently uninsured, and is at risk due to her accruing debts.

48. The only available source of funds for FJI is her property.

49. FJI’s welfare and interests must be given paramount consideration. Her dignity and reputation is at risk whilst her debts remain unpaid. Her accommodation is also at risk.

50. The Tribunal prefers the evidence of the respondent to that of the applicant. This is because the respondent has conducted a comprehensive investigation and review of FJI’s circumstances. The applicant, on the other hand, has failed to provide convincing evidence of any alternative to the sale of the property which would provide FJI with an income and enable her to meet her financial obligations, including repaying her outstanding liabilities.

51. I am satisfied that the correct and preferable decision is to sell her property.

ORDER

52. The decision to approve the sale of the property 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: 17 January 2024