Jo v Protective Commissioner

[2005] NSWADT 80

CITATION:	JO v Protective Commissioner [2005] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT JO RESPONDENT Protective Commissioner
FILE NUMBER:	043408
HEARING DATES:	18/02/2005
SUBMISSIONS CLOSED:	02/18/2005
DATE OF DECISION:	04/08/2005
BEFORE:	Leal S - Judicial Member
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983 Protected Estates Regulation 2003
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge
ORDERS:	The decision made by the Office of the Protective Commissioner on 8 December 2004 to sell the property owned by JA is affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to 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.

REASONS FOR DECISION

1 JA is an 84 year old woman with dementia who lives in an aged care hostel. On 8 June 2004, the Office of the Protective Commissioner decided to sell JA’s house. JA’s husband, JO, filed an application with the Administrative Decisions Tribunal for review of this decision.

Background

2 JO was first married to JA in 1947. They divorced in the mid 1980s. During an outing from the hostel in October 2001, JO and JA were remarried. Following the marriage, JO placed a caveat over JA’s property claiming an equitable interest in it. JA’s private financial managers subsequently removed this caveat and also instructed solicitors to have the marriage annulled, incurring substantial legal costs to JA’s protected estate. The Family Court subsequently dismissed the application for the annulment of the marriage.

3 On 31 October 2003, the Guardianship Tribunal revoked the appointment of the private financial managers and appointed the Protective Commissioner as JA’s sole financial manager. This Tribunal upheld the Guardianship Tribunal’s decision on appeal. In June 2004, the Office of the Protective Commissioner subsequently decided to sell JA’s house on the basis that she is unable to meet her day to day costs, she cannot service her debts and is not is a position financially to maintain her house. The Office of the Protective Commissioner affirmed this decision following an internal review on 14 December 2004.

Review decision

4 JO applied to this Tribunal for review of the decision under s 28A of the Protected Estates Act 1983. Under s 28A(3)(b), an application for a review of such a decision by the Protective Commissioner can be made to the Tribunal by the spouse of a protected person in respect of whose estate the decision was made. Accordingly, JO is entitled to bring this application for review.

5 Section 28A of the Protected Estates Act 1983 gives the Administrative Decisions Tribunal (“the Tribunal”) the power to review a decision of the Protective Commissioner that is made in connection with the exercise of the Protective Commissioner’s functions and is a class of decision prescribed by the regulations for the purposes of this section.

6 The class of decisions prescribed by the Protected Estates Regulation 2003 does not limit the range of decisions which would otherwise be reviewable. Clause 9 states that:

All decisions made by the Protective Commissioner in connection with the exercise of the Protective Commissioner’s functions under Division 3 of Part 3 of the Act are prescribed for the purposes of section 28A of the Act.
7 Consequently the Tribunal has power to review any decision of the Protective Commissioner made “in connection with” any function exercised under Division 3 of Part 3 of the Act. The relevant part of that Division in relation to these proceedings is s 24 which provides as follows:
24. Powers as to property

(1) In respect of the estate of a protected person the management of which is committed to the Protective Commissioner, the Protective Commissioner shall have, and may exercise:

(a) all functions necessary and incidental to its management and care, and

(b) such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise.

(2) Without limiting the generality of subsection (1) but subject to subsection (3), the Protective Commissioner shall have, and may exercise, the following functions in respect of the estate of a protected person the management of which is committed to the Protective Commissioner, that is to say, the Protective Commissioner may:

(a) ...

(f) sell, realise, charge and mortgage real and personal property.

8 The decision of the Office of the Protective Commissioner to sell real property owned by JA is therefore a decision that falls within the ambit of s28A of the Protected Estates Act 1983 .

Sale of JA’s house

9 The only issue in this matter is whether the decision of the Office of the Protective Commissioner to sell JA’s house was the “correct and preferable decision” within the meaning of s 63 of the Administrative Decisions Tribunal Act 1997. The Tribunal is to make this assessment on the basis of any relevant factual material and any applicable written or unwritten law.

10 Mr Brian White, Senior Estate Manager for the Office of Protective Commissioner, who has managed JA’s estate since February 2004, gave evidence to the Tribunal. He submitted that JA’s house should be sold for the following reasons:

i. interest is accruing on a loan provided to her to enable her to pay her accommodation bond;

ii. her pension may be cancelled leaving her with no income;

iii. she currently has insufficient income to meet her outgoings.

Interest accruing on loan to pay accommodation bond

11 When JA became a resident of the hostel, she became liable for the payment of an accommodation bond of $40 000. As JA did not have sufficient funds to pay the bond, she was provided with financial hardship assistance from the Department of Health and Ageing in the form of a subsidy to the hostel. As the Department advised that the assistance would be unlikely to be continued unless it could be shown that every effort had been made to sell JA’s property, the Protective Commissioner approved an advance of $50 000 by way of loan to JA to cover the cost of the accommodation bond and other expenses. This loan attracts interest of 8.25% per annum. Upon payment of the accommodation bond from this loan money, the financial hardship assistance was cancelled.

Potential cancellation of pension and insufficient income to meet outgoings

12 JA’s sole income is a Centrelink Age Pension of $476.50 per fortnight. JA’s home is exempt from the pension asset test for only two years from the date of her admission to the hostel. As JA’s house has been unable to be sold (due to proceedings by JO), JA has continued to receive her pension on a hardship basis despite the fact that she was admitted to the hostel five years ago. It is Mr White’s view that Centrelink “could at any time carry out a further review of [JA’s] pension entitlement in the light of her ownership of… the property and may decide to cancel her pension.”

13 JA’s fortnightly outgoings are $534.96 while her fortnightly income is $476.50

14 A report by a real estate agent dated 6 January 2004 in relation to JA’s property stated that repairs to the value of $15 000 would need to be undertaken before the property could be let.

JO’s views

15 JO did not provide any written evidence to the Tribunal. He cross-examined Mr White on his affidavit and presented oral arguments to the Tribunal in support of his application. He told the Tribunal that “you can’t sell the house of someone who doesn’t want to go” and that the Tribunal should not make any orders in the absence of JA. He requested an adjournment for the proceedings to enable him to engage a solicitor.

16 I refused JO’s request to adjourn the proceedings on the basis that he had been aware of the hearing date from 18 January 2005 and had therefore been provided with sufficient time in which to engage a solicitor. This is not JO’s first appearance before the Tribunal and he has been able to engage solicitors to appear in the Tribunal previously.

17 In relation to JO’s submission that “you can’t sell the house of someone who doesn’t want to go”, I note that JA has not been living in her house since 2000. Furthermore, in the reasons for the original decision of the Protective Commission, there is the following commentary in relation to conversation between Brian White and JA in relation to the sale of her house:

I met with [JA] on 13 May 2004 (with interpreter) and explained the position with the vacant property and the problem of meeting her financial commitments if Centrelink discontinue her benefits. I also mentioned the need to pay the $40 000 accommodation bond to the hostel.

[JA] said that she had not been back to the house for some time and asked “what do I have to do, sell the house, I will need help from someone to do that.” She also said her husband has not spoken to her about it and she mentioned “if I have to sell it so be it.”

18 A staff specialist in Geriatric Medicine at Canterbury Aged Services assessed JA at her hostel on 14 March 2004 and made the following findings:
[JA] is an 83 year old woman with a background of vascular dementia and has been in the hostel since March 2000. Her cognition has declined in the year since I last saw her and she is happy in the hostel, likes the staff there and does not want to move. If she develops difficult behaviours or begins to wander out of the hostel in the future, she may require a dementia-specific facility but at present her needs are well met by the hostel. A change of environment is likely to increase her confusion and she should remain in the hostel as long as they can meet her needs.
19 On the basis of the above assessment of JA on 14 March 2004 in addition to discussions between JA and Brian White on 13 May 2004 in relation to the sale of JA’s house, I am not satisfied that JA “does not want to go from her house.” The evidence is that JA has not lived in the house for five years, is happy living in the hostel and has voiced no objection to the sale of the house.

20 I do not accept JO’s submission that I should not make any orders in JA’s absence. Following the hearing in this matter, I reserved my decision. Accordingly no orders were made during the hearing. A copy of this decision will be provided to JO, JA and to the Office of the Protective Commissioner.

Whether correct and preferable decision

21 It is my view that it would be in the best interests of JA for her house to be sold. The evidence is that JA is well settled into her hostel, where she has been living for five years, and that she would not be capable of returning to live in her house. The house has been empty for five years and its condition has deteriorated so that it could not be leased in its current state. JA does not have the $15 000 required to undertake necessary repairs to the house to enable it to be leased.

22 JA’s loan from the Office of the Protective Commissioner is accruing interest and thus diminishing the value of her estate. Her outgoings exceed her income from Centrelink which itself could be cancelled due to the value of JA’s home. This would then leave her with no income and continuing outgoings which she would be unable to meet at all. If JA’s house were to be sold, the $50 000 loan could be repaid to the Office of the Protective Commissioner, she would be able to meet her outgoings and the proceeds from the sale of the house could be invested on her behalf. This would be preferable to the house remaining empty and deteriorating while the interest on her loan continues to accumulate.

23 For these reasons, I am of the view that it is the correct and preferable decision for JA’s house to be sold.

Decision

24 The decision made by the Office of Protective Commissioner on 8 December 2004 to sell the property owned by JA is affirmed.