Johnston v Spence

[2002] QSC 324

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston v Spence [2002] QSC 324

PARTIES:

MARGARET ELLEN JOHNSTON (by her litigation guardian MARGARET ROSE JOHNSTON)
(applicant)
v

JUDY SPENCE

(respondent)

FILE NO/S:

SC No 10117 of 2001

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

15 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2002

JUDGE:

Ambrose J

ORDER:

I refuse the application to review

CATCHWORDS:

ADMINISTRATIVE LAW – judicial review – application for statutory order for review of Minister’s decision – where funding sought for awake night cover support for disabled person – where Minister refused extra funding – whether Minister reviewed all available material – whether improper exercise of power

Disability Services Act 1992 (Qld), s 25, s 26
Judicial Review Act (1991) (Qld), s 20(2)(e), s 21(2)(e), s 23

Luu & Anor v Renevier (1989) 91 ALR 39, considered

COUNSEL:

G Beacham for the applicant
M Plunkett for the respondent

SOLICITORS:

Queensland Advocacy Inc for the applicant

C W Lohe, Crown Solicitor for the respondent

1. AMBROSE J:  This is an application for a statutory order to review the decision of Judy Spence a Minister of the Crown administering the Disability Services Act 1992 (“the Act”).

1. In January 2001 a service company undertaking care of the applicant who was a person with a disability to which the Act applied sought from the Minister additional funding in the sum of $44,205.00 for the purpose providing “awake night cover” for her.

1. Under s 26 of the Act it is provided −

“26 Ministerial approval of grants of financial assistance

The Minister may approve grants of financial assistance only if the
Minister is satisfied that—

(a) the principles set out in part 3 will be promoted by the grant; and (b) the programs and services funded by the grant will promote the
objectives set out in part 4.”

1. At the time of application the applicant was in receipt of funding as a disabled person to the extent of approximately $100,000.00 per year.

1. That funding was designed to compensate her mother (her litigation guardian) to some extent for the provision of care that she gave to her daughter and as well to pay carers for help obtained from time to time to assist her mother.

1. The principal issues canvassed before the Minister seem to have been −

(1)   Whether in fact having regard to her condition the applicant needed the attention of “awake night staff”; and

(2)   Accepting that her condition would be improved or made more safe if she had such awake night staff attending upon her during the night time (even if strictly speaking she could not be said to need it) −

(a)   Whether the services of awake night staff should be provided while she lived alone and/or shared residence with her mother or

(b)   Whether she should enjoy the benefit of awake night staff by sharing accommodation with two other disabled persons having the same sort of requirement for awake night staff as the applicant’s mother claimed she had.

1. It is clear that if each of three disabled persons needing awake night staff shared accommodation so that only one “awake night nurse” would be required to supervise the three of them then the cost of providing that additional service at an annual cost of approximately $44,000.00 would be shared among the three disabled persons and the cost of providing all required services to the three of them under the Act would be approximately $344,000 per year.

1. On the other hand if each of those person was to be provided with his or her own “awake night staff” in accommodation which he or she occupied separately from the others the total cost of providing such financial assistance would be increased by approximately $88,000.00 per year. The total cost would then amount to $432,000 per year.

1. In December 2001 the Minister refused to grant the additional $44,105 sought by the applicant to fund the provision of awake night staff to her while she lived alone or at least lived only with her aging mother as carer.

1. Obviously the cost of providing financial assistance to people with disabilities or to their service providers is something which must be met within the budgetary constraints within which the Health Department must operate.

1. It seems clear on the material that of 6,000 applicants for financial assistance packages under s 25 of the Act there were at the time of determination only about 1,000 in receipt of such financial assistance.

1. There were approximately 5,000 other people in need of grants of financial assistance which could not be funded under the budgetary constraints imposed on the Department of Health at the material time – towards the end of 2001.

1. It is clear therefore that in dealing with applications for grants of financial assistance to disabled persons or their service providers under s 25 of the Act the Minister must adopt an administrative policy (whether or not defined in writing) designed to ensure that scarce financial resources are made available to people with disabilities or to their service providers as equitably as possible. From time to time unfortunately available financial resources will be insufficient to provide all those people with sufficient funds to procure and/or provide the optimum assistance from which each might benefit were there no financial constraints on the provision of such assistance.

1. On my reading of the Minister’s decision which the applicant seeks to review this was the consideration which persuaded the Minister to refuse her application.  In giving reasons for her decision she said −

“I accept the advice of the Executive Director, DSQ, in a memorandum dated 17 December 2001, that there are no additional funds available within the Institutional Reform budget to provide the additional funding Mrs Margaret Johnston has requested for Ms Peggy Johnston.

The recurrent funding under the Institutional Reform Project which is made available for the support of Ms Peggy Johnston is sufficient to meet her support needs should she share accommodation with suitable co-tenants with similar levels of funding.  While Mrs Margaret Johnston has contended that Ms Peggy Johnston could not share accommodation with others it has been the view of the Department that this is not supported by the available evidence.  At all times the Department has maintained that Ms Peggy Johnston could share and at the time of her relocation from Basil Stafford Centre Mrs Johnston agreed, although reluctantly, that she could be a co-tenant with at least one other person.  I note that Mrs Margaret Johnston has been informed that should Ms Peggy Johnston require 24 hour support with awake night shifts then it would be necessary for her to share accommodation and support hours with another two people with similar levels of funding.

Should I approve additional funding from any source other than the Institutional Reform budget to Ms Peggy Johnston to allow her to continue to reside alone and to increase her hours of support, this would mean that these funds would not be available to provide support to other people with disabilities who are in urgent and critical needs.  Currently there are approximately 6,000 applications for Adult Lifestyle Support packages in Queensland and approximately 1,000 of these have been funded.  This leaves approximately 5,000 people that are in need of funding.  There is also a need to limit the amount of funding provided to any one individual.  The practice of allocating funding is based on the needs of the person with a disability, their capacity to share support with other people with funding and the limited resources available to meet the high demands from people with disabilities who are in need of support.”

1. On the material before the Minister which is attached to the Affidavit of Kathleen Mary Dunning filed 3 April 2002, in the absence of evidence of the sort adduced in this court, which was not placed before the Minister prior to her determination under review, the evidence of Departmental Officers to the effect that there was no real obstacle to the applicant sharing accommodation with other persons with similar disability was uncontradicted.  There was some conjecture that had the affidavit of Bronwyn Joy Maloney an occupational therapist filed in this Court on 8 March 2002 and read upon this application been available before the Minister she would then have had additional material to determine whether the applicant had any real inability to share accommodation of the sort to which the Minister referred in her decision.

1. However no attempt was made to advance that material for the Minister’s consideration prior to her determination of the application.

1. On this application for review it was contended relying upon observations made by the Full Court of the Federal Court in Luu & Anor v Renevier (1989) 91 ALR 39 that the Minister acted unreasonably in not herself procuring an expert report of the sort which was filed upon this application by the applicant.

1. The Minister was left to consider assertions made by the applicant’s mother unsupported by evidence of the sort given by Bronwyn Joy Maloney to which I have referred.  Reference was made to the observations in Luu v Renevier as to “unreasonableness” on the part of the person making the administrative decision in that case based upon consideration of medical reports.  It was held that there were other medical reports and other material generally of which the Minister’s delegate was or should have been aware which made it unreasonable for him not to require that material to be placed before him. 

1. At p 47 it is commented −

“The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding… where the finding is critical to the ultimate decision, it is impossible to sustain the decision.”

1. In this case the finding of the Minister was in fact supported by some evidence.  On p 48 of Luu however it is observed −

“The finding of Mr Luu that there was a “real risk” of recidivism by Mr Renevier was crucial to his decisions to refuse the application … In arriving at that finding, Mr Luu did not claim any personal expertise in assessing the likely effect of such an operation as Mr Renevier underwent.  He based himself entirely upon two medical reports.  Under such circumstances, the finding could only be rationally made if founded upon cogent evidence from a suitably qualified medical practitioner with knowledge of the facts. There was no such evidence.”

1. Their Honours continued −

“However, the matter of unreasonableness does not stop there. There were two matters known to Mr Luu which made it unreasonable for him to make a decision adverse to Mr Renevier, at least on the material then available to him.”

1. Their Honours then adverted to other reports and uncertainty that may reasonably have been based on their content.  Their Honours then observed that other expert evidence if properly investigated and considered may have provided material relevant to the determination of the “crucial fact” which Mr Luu was required to determine as Minister’s delegate.

1. At p 50 it is observed −

“The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the Administrative Decisions (Judicial Review) Act 1977, may be related to the manner in which power is exercised. Unreasonableness, like each of the other grounds stated in s 5(2) of the Act is an example of the ground of review set out in s 5(1)(e), viz:

“(e)  that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made” (emphasis added.

One may say that the making of a particular decision was unreasonable – and, therefore an improper exercise of power – because it lacked a legally defensible foundation in the factual material or in logic.  But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.”

1. In that case the Full Court remitted the matter for reconsideration by the Minister.  For the applicant in this case it is asserted that on the material before the Minister, some years had passed since she had been observed within an institution where she was obtaining treatment and care for her disability and that the Minister – even though no evidence was placed before her of the sort contained in the evidence of Ms Maloney filed upon this application − ought to have required the provision of that sort of evidence for her consideration before making her determination. 

1. There is no suggestion in this case of any procedural unfairness.  On my appreciation of the situation there was nothing before the Minister of the kind considered in Luu v Renevier to require the making of further inquiries in addition to those already made by her departmental officers of persons thoroughly familiar with the personality and behaviour of the applicant over the many years that she had spent in institutional care.

1. In my view the applicant can derive little assistance on the facts of this case from observations made upon the facts considered in Luu v Renevier (supra).

1. The provision of very extensive services to persons having a disability of the kind from which the applicant suffers was at the material time very expensive, costing approximately $100,000 per person per year.  There is nothing in the legislation requiring the Minister, prior to making her determination, to obtain further departmental or independent occupational therapeutic advice of the sort which the applicant obtained from Ms Maloney subsequent to the rejection of her application for further financial assistance, in the absence of anything in the departmental material placed before her or in material from experts placed before her by the applicant, raising such matters. To adopt such a course without good reason would involve the incurring of unwarantable expense.

1. Had that material been placed before the Minister to support the application at an early stage it may have generated more detailed and thorough expert reports from departmental officers which may have either confirmed or contradicted the views of Ms Maloney. An application for an order to review is not in the nature of a rehearing of the matter determined in an administrative process, much less is it in the nature of a hearing de novo of that matter.

1. As far as I can determine on the material, and it was not suggested to the contrary in argument, there is nothing to prevent the applicant from making another application under s 25 of the Act for the provision of further assistance to provide the awake night services of a carer in a place of non shared accommodation.

1. Even if the Minister came to the conclusion on this issue when fully contested that it would be desirable if the applicant received the additional care sought it would not necessarily lead her to grant her application.  It is perfectly clear from the reasons she gave for her decision rejecting the application that upon the evidence she was not satisfied that the applicant was not able for the same cost to share accommodation with two other people so that an awake night shift carer might care for three disabled persons rather than for the applicant alone.

1. Even if upon a review of further material on this issue the Minister were persuaded that there was some risk that the applicant would not readily cope with shared accommodation it seems to me that it would still be open to her to require the applicant to share a night awake carer with two others until it became apparent that she was not able to do so safely or effectively.

1. As I understand the structure of the Act the determination by the Minister is not analogous to a final judgment. Undoubtedly the type and amount of financial assistance to be provided to the applicant under s 25 of the Act will change according to her circumstances. What is deemed to be adequate assistance for the applicant at the present time may be thought to be more or less than adequate as her condition improves or deteriorates. When her mother ceases to be able to care for her during the day time, the Minister will undoubtedly have to determine whether she receives one on one care funded by a grant under the Act or whether funding will be restricted to care provided on a three person shared accommodation basis.

1. The budgetary constraints upon the grant of financial assistance under s 25 may not be the same now as they were when the Minister made her decision under review. Having regard to the number of persons suffering from disabilities and the severity of those disabilities, within the constraints of the current year’s financial budget there may be more or less funding available although I suppose it is unlikely that there will be significantly more funding available. However that may be I have come to the conclusion that on the material before me it has not been demonstrated that the making of the decision by the Minister involved “an improper exercise of the power conferred by” the Disability Service Act 1992 within s 20(2)(e) of the Judicial Review Act (1991) or within s 21(2)(e) of that Act.

1. Under s 23 of the Act “improper exercise of power” is defined to include “an exercise of a power that is so unreasonable that no reasonable person could so exercise the power”. In the circumstances of this case as I have outlined them I am unpersuaded that the Minister’s exercise of power in arriving at her determination was “improper” within the meaning of s 23 of the Act.

1. I refuse the application to review.