Johnston v The State of Queensland
[2013] FCCA 175
•3 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHNSTON v THE STATE OF QUEENSLAND | [2013] FCCA 175 |
| Catchwords: HUMAN RIGHTS – Disability Discrimination – funding requirements – care requirements – levels of funding. |
| Legislation: Disability Discrimination Act 1992, ss.4, 6(1), 6(2), 24, 29 |
| Cases cited: Rainsford v Victoria (No 2) (2004) 184 FLR 110 |
| Applicant: | MARGARET ROSE JOHNSTON ON BEHALF OF HER DAUGHTER MARGARET ELLEN (“PEGGY”) JOHNSTON |
| Respondent: | THE STATE OF QUEENSLAND |
| File Number: | BRG 111 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 22, 23, 24 August 2011 |
| Date of Last Submission: | 24 August 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 3 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J E Smith |
| Solicitors for the Applicant: | Welfare Rights Centre Queensland |
| Counsel for the Respondent: | Mr Murdoch |
| Solicitors for the Respondent: | Crown Solicitor for the State of Queensland |
ORDERS
The application filed on 14 January, 2011 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 111 of 2011
| MARGARET ROSE JOHNSTON ON BEHALF OF HER DAUGHTER MARGARET ELLEN (“PEGGY”) JOHNSTON |
Applicant
And
| THE STATE OF QUEENSLAND |
Respondent
REASONS FOR JUDGMENT
Margaret Ellen Johnston is profoundly intellectually and physically disabled. She presently lives in a unit rented from the Queensland Housing Commission. She does not share her accommodation with anyone else. Her mother Margaret Rose Johnston lives in an adjacent unit. There is no dispute that Ms Johnston requires 24 hour assistance, seven days per week. One of the factual disputes in this case is the precise nature and extent of the assistance required by her, but there is no dispute that she needs 24 hour care, seven days per week.
The respondent, the State of Queensland, at all material times has provided and will continue to provide, grants of funding to assist with the provision of support and care for Ms Johnston. For the period 2009/2010 the respondent paid $146,765.00 in funding for Ms Johnston. However, Mrs Johnston seeks, through this proceeding, that an additional $29,744.00 per annum (indexed) be paid to Ms Johnston (or on her behalf) on a continuing basis.
Section 24 of the Disability Discrimination Act1992 (Cth) makes it unlawful for a person who provides goods or services, or makes facilities available to others, to discriminate against another person on the ground of the other’s disability. This case is about whether, by refusing to increase the funding in the way claimed by Mrs Johnston, the respondent has unlawfully discriminated against Ms Johnston.
Mrs Johnston brings this application on behalf of her daughter. Although she does not seem to have been formally appointed Ms Johnston’s litigation guardian for these proceedings and she did not, in terms, describe herself as such in the proceedings, it maybe that is what she is. In any event, no issue was taken about the standing of Mrs Johnston to bring these proceedings or the way they have been constituted. They have been conducted on the basis that they are properly constituted.
Some Background
Ms Johnston was born on Australia day in 1961. She was born with an intellectual disability and has never been able to talk. Her early years were spent in Townsville where she attended the Cootharinga Centre. She was taught to walk and to hold a spoon but not to feed herself.
From about 1975 to about 1998 she lived at the Basil Stafford Centre in Brisbane. During that time she developed epilepsy; osteoporosis, severe scoliosis, and she experienced amenorrhea. She has oral stage dysphasia which means that she is highly susceptible to choking on food while eating. From time to time she has suffered from stomach ulcers.
In about 1998 the Basil Stafford Centre was closed. Upon the closure of the Centre an “institutional reform initiative” was implemented by the respondent, which allocated to Ms Johnston a “recurrent institutional reform funding package” to enable her to reside in the community. The Department of Communities is responsible for the administration of grants of recurrent funding on behalf of the respondent. It also monitors the administration of funding on an annual basis for the benefit of funding recipients.
Upon the closure of the Basil Stafford Centre Ms Johnston moved into Queensland Housing Commission accommodation at Collingwood Park to the south-west of Brisbane.
The funding provided for Ms Johnston by the respondent is paid to a service provider on her behalf. That service provider provides the care services needed by Ms Johnston. In this instance, the service provider is a private company operated by Mrs Johnston called Margaret Ellen (Peggy) Johnston Pty Ltd. It is not clear who owns the shares in that company, but Mrs Johnston said in evidence that it was “Peggy’s company” and that was why it was in her name. In any event, nothing turns upon this.
When Ms Johnston first moved to her Collingwood Park address, she did so with a co-tenant from the Basil Stafford Centre under the supervision of an organisation, then named Catholic Social Response, but now known as Centacare. Ms Johnston did not thrive in the shared accommodation. She lost weight and was miserable.
At the time of the trial she continued to reside at Collingwood Park, although now does so alone. At present she receives funding that is sufficient to provide paid care for all but 27 hours of each week. Mrs Johnston seeks an increase in funding (presumably to the service provider) so that it receives sufficient funds to employ a paid carer for an additional 13 hours per week. Thus, the balance of 14 hours would remain unfunded and that care would be provided on a voluntary and unpaid basis by Mrs Johnston. Mrs Johnston presently provides most, if not all, of the unfunded care required by her daughter.
Ms Johnston’s Disabilities
The respondent admits that because of her conditions and ailments, Ms Johnston has a disability as that term is defined in s.4 of the Act. However, the respondent does not admit the extent to which those conditions and ailments impact upon her. For example, it does not accept that she is unable to communicate her needs or wishes or that she is unable to feed herself, because she can do so with supervision.
Accordingly, much of the evidence in this case centred upon the nature and extent of the disabilities endured by Ms Johnston. The primary focus of the dispute was whether Ms Johnston required at least 6 hours of one-on-one care per day. However, for the reasons that appear below, it is probably unnecessary to decide that factual issue. Nonetheless, out of deference to the way in which the parties conducted the proceedings, I shall make some findings on that issue.
Mrs Johnston called a number of witnesses who gave evidence as to her daughter’s disabilities and care needs. The evidence called by her satisfies me that Ms Johnston:
a)has significant osteoporosis and a high risk of bone fractures that is unlikely to improve in the future. Such is the risk of fracture that, according to her general practitioner’s evidence, she may sustain a bone fracture through the simple act of coughing;
b)has bilateral esotropia, a condition of her eyes that causes her eyes to turn inwards towards her nose when she is relaxed. When she concentrates one of her eyes will straighten up temporarily. The condition impairs her ability to perceive depth and distance. In addition she has suffered a penetrating injury to her eye which is likely to have impaired her vision in that eye, but because she cannot communicate, that cannot be verified;
c)has oral dysphagia, a swallowing disorder that impacts upon her safety. She has impulsivity and poor judgment in relation to swallowing. She is at risk of choking, aspiration and poor nutrition as a result;
d)has skin conditions that must be cared for by appropriate and regular care regimes;
e)has a severe and profound intellectual disability;
f)cannot speak; and
g)cannot otherwise communicate, except on a most basic level using facial gestures.
Ms Johnston cannot do anything for herself. I have evidence from Ms Johnston’s paid carers, Tamara Navie and Nola Hulin. Both witnesses care for Ms Johnston on a day-to-day basis and they set out in detail what that entails. Ms Hulin takes Ms Johnston for exercise by walking her to the park and taking her to a local respite centre. I also have Mrs Johnston’s evidence about the care that she provides to her daughter. Although Mrs Johnston is a fierce advocate for her daughter’s welfare, I see no reason to doubt her evidence in relation to the needs of her daughter.
I am satisfied by the evidence that Ms Johnston needs one-on-one care for:
a)Meal times;
b)Toileting;
c)Crossing the road and exercise;
d)Intake of fluids;
e)Administering medication;
f)Bed time and readying her for bed.
I am satisfied by the evidence that she needs one-on-one care for a substantial portion of every day. I accept that given the nature and extent of Ms Johnston’s disabilities, a constant carer, devoting their attention to Ms Johnston all of the time would ensure that Ms Johnston is properly protected from the risks to her safety that are inherent in her conditions.
There is no dispute between the parties that Ms Johnston:
a)is not likely to intentionally harm herself;
b)is not likely to intentionally harm others in her environment; or
c)is not likely to intentionally harm others living in the community.
The Funding
Institutional reform grants are specific grants of funding for people who were relocated from State-run institutions such as the Basil Stafford Centre. They are recurrent and, subject to CPI increases, are fixed depending upon assessments made at the time a person was placed in the community.
Upon her departure from the Basil Stafford Centre, Ms Johnston was assessed by a “relocation team” on behalf of the respondent. She was assessed as requiring 24 hour support but as also being able to share the support with at least one other person. Institutional reform package funding, at an amount that when combined with the funds of a co-tenant, would enable her to have 24 hour a day support was approved for Mrs Johnston.
In practical terms, that meant that if Ms Johnston and a co-tenant were funded to share support at 65 hours a week and sleep-overs (as Ms Johnston was), there would be 130 hours of disability support (and sleep-overs) available during the week. That support could be utilised to best suit the persons needing the support. Thus, that might be allocated as 112 hours per week of one support worker supporting Ms Johnston and her co-tenant at the same time and the balance of the allocation divided between two support workers for nine hours per week each. Any time devoted to one-on-one care for each disabled person by separate carers present at the same time, would proportionately reduce the funding available to provide those support workers for any particular week.
Ms Johnston’s institutional reform package funding was not conditional on there being a co-tenancy. When her co-tenancy ceased soon after she left the Basil Stafford Centre, her funding continued.
The evidence demonstrates that aside from the institutional reform package funding, the primary funding program through which the respondent provided assistance to people with disabilities was the Adult Lifestyle Support Program. That funding was available to assist people with disabilities with their quality of life and to support them to maintain a living arrangement of their choice. It provided funds to assist people with a disability to purchase a range of goods and services from non-government providers so as to enable them to meet their support needs.
The Lifestyle Support Program funding guidelines documented the process by which that funding was determined. The guidelines are in evidence.
Lifestyle Support Program funding was available to Ms Johnston upon application by her. In 2004 Ms Johnston applied for additional funding through the Lifestyle Support Program. According to the respondent’s evidence, which I accept, any increases to the level of funding provided to Ms Johnston would have needed to have been drawn from the funds available for the Lifestyle Support Program. Those funds are finite and are allocated according to assessed need.
According to the evidence before me, the Lifestyle Support Program guidelines are applied in conjunction with the guidelines for Disability Services Queensland funding programs generally. Those latter guidelines are also in evidence. Relevantly, under the latter guidelines (at clause 15), grant funding is provided to contribute towards the cost of service provision and may only be used for eligible costs. The upper limit of recurrent funding to be provided by the respondent for direct support to any individual through either the institutional reform package funding or the Lifestyle Support Program is 65 hours per week plus sleep-overs.
Thus, according to the general guidelines for Disability Services Queensland funding programs, Ms Johnston already receives the upper limit of recurrent funding that is available.
However, where there is a demonstrated need for care to be provided on a one-on-one basis, be it continually for 24 hours or for a portion of the day, and no other form of care or support is available or adequate to minimise potential harm to the individual, harm to others in the support environment, or harm to others living in the community, additional grants of funding for one-on-one care might, subject to availability of funds, be made.
Ms Johnston’s application was determined according to the processes used by the respondent to determine such applications. After consideration by a Regional Priority Panel and then the State-wide Funding Panel no further funding was determined to be available to Ms Johnston.
The Claim of Discrimination
Ms Johnston’s claim is one of indirect discrimination. Indirect discrimination is defined by s.6 of the Act. Both parties argued the case upon the basis that it was the present form of s.6 of the Act which was relevant.
Section 6 of the Act provides:
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
To make out her case of indirect discrimination pursuant to s.6(1) of the Act, Mrs Johnston must establish the following elements:
a)the respondent requires her to comply with a requirement or condition; and
b)because of her disability, she does not comply, or is not able to comply, with the requirement or condition; and
c)the requirement or condition has the effect of disadvantaging persons with her disability; and
d)the requirement or condition must not be reasonable.
The identification of the “requirement or condition” of which Ms Johnston complains is critical. Whilst the phrase “requirement or condition” is one which should be construed broadly, the “requirement or condition” must nevertheless be identified with precision.
In her statement of claim Mrs Johnston identifies the requirement or condition (described in her statement of claim as a “term”) upon which she primarily relies and an alternative. They are as follows:
18. The Term is that the Claimant only receives so much funding as would allow her to live in a shared living and shared care arrangement where the Claimant and one other person of similar needs would share living quarters and share the care and attention of a single carer for substantial portion of the day.
19. In the alternative, the Term is that in order to receive enough funding to provide for one- on-one care for substantial portions of each day, the Claimant would have to either be a risk of deliberate self-harm or possessed of violent tendencies such that she presents a risk of harm to members of the community.
No attempt to reformulate either of those alleged terms was made by Mrs Johnston’s Counsel either in written or oral submissions.
The respondent pleads that neither of the alleged terms is imposed by it upon Ms Johnston as a condition of her funding. The respondent pleads that if any term is imposed, it is in the following terms:
17. As to the allegations contained in paragraph 19 of the statement of claim, the respondent:
(a) denies that a term has been imposed as pleaded on the basis that no such term as pleaded has been imposed;
(b) says that if it has imposed a term that in order to be eligible to receive a grant of funding for 24 hour care to be provided on a one-to-one basis for a portion of a day funded by the respondent:
(i) there must be a demonstrated need for 24 hour care to be provided on a one-to-one basis for a portion of a day;
(ii) no other form of care or support must be available to minimise:
A. potential harm to the individual;
B. harm to others in the support environment; or
c. harm to others living in the community.
As to the primary term advanced by Mrs Johnston, on a proper analysis of the facts it will be appreciated that the respondent has imposed no such term upon the provision of Ms Johnston’s funding. The term as framed focuses upon the practical outcome for Ms Johnston of an application of the funding policy. It is not a condition of the funding that she receives and it is not a term said to be imposed upon her as a condition of receiving higher funding. What is described is the outcome or product of an application of the conditions imposed by the respondent for the provision of funding.
As to the alternative term, it seems to me that, properly understood, what is alleged is a requirement or condition imposed upon Ms Johnston with which she would have to comply if she wished to secure a higher level of funding. However, the evidence does not reveal that such a term is imposed upon Ms Johnston as a condition of higher funding. I accept the respondent’s proposition that the formulation of the term in the statement of claim reveals a misunderstanding of the circumstances in which additional funding may be available.
Moreover, I accept the respondent’s submission that Mrs Johnston wrongly asserts that the provision of additional funding is limited to persons with a behavioural disability. There is nothing in the evidence to suggest that is so. Potential to cause harm to the individual, harm to others in the support environment, or harm to others living in the community is not necessarily indicative of a behavioural disability. Although the term is not phrased in that way in paragraph 18 of the statement of claim, the applicant’s submissions (both oral and written) made it clear that she took the view that the alleged term was a requirement that the funding aspirant have a behavioural disability.
The term as formulated by the respondent accords with the evidence. I find that Ms Johnston is subject to a requirement or condition to the effect of that pleaded in paragraph 17 of the respondent’s defence. In that respect, the first element of Mrs Johnston’s claim is made out because to secure the higher levels of funding, she must comply with a requirement or condition.
It cannot be said, however, that Ms Johnston does not comply, or is not able to comply, with the requirement or condition because of her disability.
There is no doubt that the funding policy applied by the respondent is discriminatory in that it seeks to make funding available to some and to deny funding to others. There is nothing remarkable about that. Governments continually formulate and implement policies for the distribution of resources amongst community members, be they the victims of drought or flooding rains, the beneficiaries of education or rehabilitation programs, or for some other reason. Section 6(1) (in conjunction with s.24) of the Act only makes such discrimination actionable where it concerns a person with a disability as defined in the Act, and the discrimination occurs because of the disability.
In the present case, Ms Johnston does not qualify for the higher level of funding desired by her because she does not meet the requirements or conditions imposed by the respondent for its receipt. Her failure to meet those conditions or requirements has nothing to do with her disabilities, or the fact that she has them. She is not denied the relevant funding because of her disability. It is because she has been assessed not to have the requisite disability, either in type or extent, that she cannot access the relevant funding.
Her Counsel attempted to argue that because her disability did not have the requisite features to enable her to access the desired funding, there was discrimination because of her disability. To suggest that she was not disabled “enough”, he argued, was discriminating against her because of her disability. However, the argument was premised on the misunderstanding that Ms Johnston was required to demonstrate a behavioural disability to secure the relevant funding. In any event, to argue the matter in that way pays no attention to the casual relationship that must exist between the disability and the inability to comply with the relevant term or condition. Here, Ms Johnston’s inability to comply with the relevant term or condition was not because she was disabled in the ways set out above, but because she was assessed as not disabled in the ways or to the extent required by the policy before further funding would be made available.
The applicant’s argument might be tested by positing a person with a disability, such as the loss of sight in an eye (clearly a disability under the Act), seeking the funding that Ms Johnston now wishes to access. It could not be sensibly argued that such a person is the subject of indirect discrimination because their disability does not meet the requirement or condition attached to that funding as found above.
For that reason, Mrs Johnston’s claim must fail. She does not establish the second of the elements set out above necessary to be made out to succeed in her claim. Her inability to comply with the requirement or condition that I have found was imposed upon her by the respondent, has not come about because of her disability.
For the same reasons, any claim based upon s.6(2) of the Act (which was not expressly relied upon by the applicant) must also fail.
Other Matters
The applicant’s Counsel focussed his submissions upon s.24 of the Act and argued that the “staff of the department” are facilities and that, drawing on statements in Rainsford v Victoria (No 2) (2004) 184 FLR 110, the “distribution” of funding is the provision of services by the respondent to Ms Johnston.
To understand that submission, some further background to the statutory regime is necessary. Discrimination, direct or indirect, on the grounds of disability is not, per se, actionable. To constitute unlawful discrimination the impugned conduct must occur in an area prescribed by the Act. Here the applicant relies upon s.24 of the Act, which makes it unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:
a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
b)in the terms or conditions on which the person provides the other person with those goods or services or makes those facilities available to that other person.
Goods is not defined in the Act. Facilities is not defined in the Act. Section 4 of the Act, however, defines the term services. It does so in the following way:
services includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f) services of the kind provided by a government, a government authority or a local government body.
The particulars relied upon by Mrs Johnston in her claim refer specifically to the definition of services and that part of the definition in subparagraph (f) set out above. Thus, Mrs Johnston contends that the provision of the institutional reform package funding to her daughter (or her service company) is a service “of a kind provided by a government, a government authority or a local government body”.
The respondent points to s.29 of the Act, which is in the following terms:
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
The respondent argues that if goods and services and the making of facilities available incorporated the provision of funding by a government, s.29 of the Act would be otiose.
Although it is not necessary for me to come to a conclusion about these matters given the conclusions I have reached above, I am inclined to think that the provision of funding (or the staff to process any funding applications or distribute funds) is not the provision of goods, services or the making of facilities available for the purposes of s.24 of the Act. Mrs Johnston’s claim would fail on this basis as well.
Conclusion
In my view, Mrs Johnston has not demonstrated that the respondent has, when applying the funding policies set out above, discriminated against Ms Johnston because of her disability.
The application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 May 2013
Date: 3 May 2013
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