KZ
[2021] WASAT 24
•18 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KZ [2021] WASAT 24
MEMBER: DR E MARILLIER, MEMBER
HEARD: 19 JANUARY 2021
DELIVERED : 12 FEBRUARY 2021
PUBLISHED : 18 FEBRUARY 2021
FILE NO/S: GAA 4387 of 2020
KZ
Represented Person
CW
Applicant
Catchwords:
Guardianship - Administration Need for a guardian and administrator - Less restrictive alternative - Physical chastisement not acceptable - Protection of another - Lawful excuse
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 222, s 223, s 248
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(b)
Result:
Administration application dismissed
Guardianship application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 21 January 2021. Oral reasons were delivered on 12 February 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out).
Background
This case came before the Tribunal after an application under s 40 of the Guardianship and Administration Act1990 (WA) (GA Act) was made by the former support worker for KZ, CW. CW raised concerns that KZ was being bullied by his father, TZ, and was physically, financially and emotionally abused. He requested that the case be investigated by the Public Advocate.
KZ is now 34 years old and has a developmental disability manifesting mainly in the areas of speech and communication. He lives in his own Homeswest unit, enjoys playing with a local cricket club up to four times a week, drives his own car and works in an unpaid capacity in the family business. He receives the disability support pension and assistance via the National Disability Insurance Scheme (NDIS) including speech therapy and social and domestic skills support.
In his application, CW stated that he had worked with KZ from 2009 to 2019. During that time he had assisted him to enrol in technical education courses, join the cricket club and start to live independently. He stated that over the years that he had known him, KZ had reported slaps and punches to the head and face once or twice a year from his father. However, the incident that prompted his application was the first time where KZ was able to give CW the details.
CW stated that KZ had called him on 5 July 2019 and reported that his father had struck him on the face in the context that KZ wanted to take clothes out of his parents' home. CW assisted KZ by meeting him for a pre-existing appointment and then helping him to contact People with Disabilities WA (PWDWA). KZ was advised to report the incident to a doctor and the police. CW stated that KZ had declined to report the matter to the police. CW attended Canning Vale police station and made a report on 19 July 2019.
CW also alleged that KZ was being financially exploited by his father in two ways. Firstly by an insistence that KZ work in the family businesses without pay, and secondly by taking money from KZ's account without his permission.
CW had initially sought assistance with his concerns from the Public Advocate. He detailed the concerns in a letter dated 27 January 2020 and the contents were considered in regard to whether a community referred investigation should be undertaken. The investigator discussed with CW that an application could alternatively be made to the State Administrative Tribunal (SAT). There was a delay of some months between the time this was discussed on 14 April 2020 and the application being submitted on 9 November 2020.
The matter was referred to the Public Advocate for investigation prior to the SAT hearing, which was conducted on 19 January 2021.
The principles to be observed.
In making a decision, the Tribunal must observe the following principles[1]:
•the Tribunal's primary concern must be the best interests of the person concerned;
•every person is presumed to be capable of looking after their own health and safety; of making reasonable judgements in matters relating to their person; of managing their own affairs; and of making reasonable judgements in respect of matters relating to their estate. Orders cannot be made unless there is sufficient evidence before the Tribunal to rebut that presumption and positively establish that because of their mental disability the person is unable to make such reasonable decisions;
•an administration or guardianship order may not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;
•where an order is made, it must be in terms that impose the least restrictions on the person's freedom of decision and action;
•the Tribunal must seek to ascertain, as far as possible, the views and wishes of the person concerned.
The evidence before the Tribunal
[1] GA Act s 4.
The Tribunal was assisted by the investigation report of the Public Advocate's investigator EZG. As well as her report she provided copies of KZ's last six months of bank transactions (which showed no untoward transactions), additional information from CW in an email dated 15 January 2021, a copy of a letter written by support worker KH provided by KZ's father TZ, and a screenshot from a Google review which was represented as being a 'public statement' by a third person by CW in his letter detailing his concerns and his application. The Tribunal was also provided with documents regarding KZ from the disability services commission (revealing their involvement in supporting the family from 1997 to 2019), his current NDIS plan, service provider reports from his service coordinator and his speech pathologist, and information from an advocate from PWDWA, MF.
CW provided a service provider report and attached the letter he had sent to the Office of the Public Advocate, additional answers to questions from the investigator and copies of incident reports written on 4 July 2019 and 5 July 2019 by KH and himself respectively. KH reported an incident where she had met KZ at a furniture shop at his request. He had arrived appearing agitated and asked her to call his father. She reported that TZ became abusive to her on the telephone and demanded they wait at the store for him. She hung up, called CW, and he advised that KZ leave, and KH call the police. She contacted security, TZ arrived and was rude to staff but they 'shut him down'. After he left, she found KZ, who was distressed, and stayed with him until he calmed down and felt safe to return home to his unit.
In answer to questions from the investigator CW stated that his concerns about financial losses to KZ's account related to ongoing fortnightly $700 withdrawals marked to ‘Waterford’. They occurred over a period of four years from 2014 to 2017.
At the hearing, EZG explained that she had met with KZ on two separate occasions. Once with his parents, and once on his own. She had the advantage that she could speak to KZ in both Mandarin Chinese and English.
In relation to the incident reported on 4 July 2019 by KH, KZ told EZG that he had not yet decided whether he wanted to buy the furniture. Regarding the second incident on 5 July 2019, KZ told EZG that he had pushed his mother LP, after she had stood in front of him to try to prevent him from leaving the house with his clothing. His father slapped KZ after he had pushed his mother. KZ had not revealed this context when he reported this incident to anyone else.
EZG was also able to discuss CW's concerns with the previous Local Area Co-ordinators (LACs) for KZ (from 2007 to early 2019) who now work at the Office of the Public Advocate. They both confirmed that throughout that time there had been no evidence of any physical or verbal abuse by TZ to KZ. They reported that KZ's parents were always very keen to promote his independence, including learning new skills and finding work. The LAC at the time of the incidents above was made aware at the time of CW's concerns. Multiple conversations were held with TZ and KZ both independently and together. The allegations were not substantiated, but it was noted that the relationship between CW and TZ had started to fracture, as their perspectives of how KZ should grow as a person seem to differ greatly.
EZG had interviewed KH as part of her investigation. Unfortunately KH received late notice of the hearing and was unavailable to give oral evidence. I had a copy of her incident report from 4 July 2019, the evidence of the interview she had with EZG, and CW's oral evidence in regard to this incident. CW indicated at the start of the hearing that he was content that he could present their concerns in KH's absence, and EZG presented the evidence as KH relayed it to her, as well as indicating that KH's evidence regarding concerns for KZ's welfare was supportive of CW's report.
Capacity
I have had regard to formal IQ testing and Adaptive Behaviour scores completed by a school psychologist in 1997 demonstrating that KZ at that time had a moderate cognitive deficit with significant deficits in language development. It is important to note the context - that KZ and his parents had emigrated from China only two years prior to this assessment.
However, a report for the NDIS by MJ, speech pathologist, in March 2020 (when she had known KZ and his parents for five years), concludes that he has difficulties with expressive and receptive language which impact on his ability to develop and maintain relationships and to participate in the workplace. Amongst MJ's suggestions, she indicated that KZ needs support in developing strategies to assist in effective communication, including topic maintenance, using personal organisers and taking notes to allow better analysis of information and flexibility of thinking. It is also noted by MJ that 'KZ's capacity to advocate for [him] self and his needs, negotiate with service providers and to follow up on required actions has proven to be insufficient. KZ requires support to be able to access services adequate to his needs and support to navigate the system.'
KZ has been found eligible for support through the Disability Services Commission and the NDIS, as well as the Disability Support Pension (DSP).
I am satisfied on the evidence above that KZ has a developmental disability which impacts his capacity to make reasonable judgments in his own best interests, and is therefore a person for whom I could make orders.[2]
Is there a need for a guardian?
[2] GA Act s 43(1)(b).
I therefore turn to the question of whether there is a need for orders, or whether KZ's need for support can be met through informal mechanisms.
KZ spoke passionately at the hearing about his desire to be as independent as possible, and his belief that he can manage decisions with the support of his parents. He appeared confident and self-assured in regard to this.
KZ spoke with pride about the times when he has been the captain or vice-captain of his cricket team, and of completing general adult education and horticulture courses.
EZG indicated that KZ now has the services of a support coordinator for NDIS to assist with navigating the system and engaging appropriate supports. She provided in her report KZ's recent weekly timetable indicating that he does provide assistance at the family business for four half days a week, but is free to come and go to his other activities including computer class, cricket, speech therapy, VW club and cooking class. I was therefore satisfied that there was no need to appoint a guardian for services, despite the concerns raised in MJ's report, as I believe this is now provided via the support coordinator.
Concerns related to whether KZ should be paid for the hours he works at the family business were discussed at length in the hearing. In the NDIS plan and MJ's report it is stated that KZ's desire is to find a job in horticulture (his dream job is to be a groundskeeper at the WACA[3]). KZ's parents explained that he has trouble maintaining focus and consistently completing tasks at work. CW indicated that although KZ had had trial shifts at some jobs, none had led to an offer of work. In addition, KZ had not really enjoyed any of the jobs he tried, and so the focus of their support work had shifted to social skills and community participation.
[3] KZ, NDIS Plan 14 May 2020.
I was satisfied that the current arrangements do not appear exploitative, and permit KZ to freely participate in his passion, cricket, and to attend ongoing therapy and educational activities. Engaging in tasks at the family business allows him to spend time with his parents and to contribute, without affecting his ability to engage in those other activities. I am therefore satisfied that there is no need for a guardian for work decisions, as the support co-ordinator can assist KZ via NDIS to explore employment options in line with his stated plan.
KZ lives in his own unit, with support from family (he eats many meals with them) and support workers (he currently receives 4-8 hours a week of support via the organisation Cam Can). In their service provider report to the Tribunal, Cam Can report that KZ has a close and supportive relationship with TZ, that KZ had asked staff to share information with TZ to allow him to support KZ in making lifestyle decisions, and they have not witnessed or been made aware of any conflict. They report that TZ encourages KZ to develop trusting relationships and increase support from service providers. TZ spoke of the strong desire he and LP have to provide for KZ's future. He is their only child, and they work hard to try to set him up for success and security. I am satisfied that there is no need for a guardian for accommodation as suitable accommodation has been successfully arranged for KZ to maximise his independence without one.
The context of the incident on 5 July 2019, where there was an altercation between KZ and TZ, is seen in a different light with the uncontested additional information that KZ had initially pushed his mother, and that TZ was intervening for her protection. At the hearing, the fact that physical chastisement of adults is not acceptable was clarified.
Both under criminal and common law, touching another person is an assault, unless there is consent or a lawful excuse. A lawful excuse can include the protection of another where there is a reasonable apprehension of harm.[4]
[4] Criminal Code Act Compilation Act 1913, s 222, s 223 and s 248.
I therefore conclude that the incident on 5 July 2019, if isolated, can be understood in context to be an understandable and lawful act by TZ to defend LP, given that KZ had initially pushed her, if TZ believed there was an ongoing risk of KZ hurting LP. It is important to note, however, that punishment or chastisement for harm that has passed can never offer a lawful excuse.
The Public Advocate's investigation, including the previous LACs reporting no evidence of physical abuse over the 12 years they had collectively known the family, and the evidence from Cam Can, the current service provider of the supportive and non-conflictual nature of KZ and TZ's relationship persuades me that there is not a current need for a guardian for contact. The ongoing involvement of support workers, speech pathologist and service co-ordinators provides KZ with avenues for assistance should he require it in the future.
Is there a need for an administrator?
In regard to finances, I have considered the evidence of CW that regular fortnightly amounts of $700 totalling many thousand dollars came out of KZ's account between 2014 and 2017. TZ explained that this was board and lodging that came out of KZ's DSP income while he was living with his parents. It ceased when KZ moved to his own place. I accept this explanation.
I have been provided with KZ's last 6 months of bank statements and they show no transactions of concern, and significant savings.
The service provider report from Cam Can indicates that support workers observe KZ buying food for meal preparation, or ready to eat food and drinks, and he performs this independently.
CW provided a copy of tax invoices he issued to KZ during the time when KZ was self-managing NDIS funds, after TZ wished to cease CW's services and KZ wished them to continue. It was clear at the hearing that KZ would need support to understand a service agreement and check whether an invoice reflected such an agreement and was fair and reasonable. However, as KZ now has a support co-ordinator as part of his plan, independent support regarding this aspect of his finances is managed through that mechanism.
KZ has a simple estate, and is managing this competently on the evidence before me. I am satisfied that there is no evidence of financial abuse, and that there is no need for an administrator.
Decision of the Tribunal
I would like to acknowledge that I appreciate the seriousness of the concerns raised by CW in his application, and note that it was appropriate to raise the matters for investigation by the Public Advocate and consideration by the Tribunal.
For the reasons above, I have determined that there is currently no need to make orders, as informal support mechanisms are currently sufficient to ensure that KZ's health, safety and financial affairs are protected.
The applications for guardianship and administration orders are therefore dismissed.
Orders
The Tribunal orders:
Administration
1.The administration application is dismissed.
Guardianship
2.The guardianship application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
18 FEBRUARY 2021
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