NCN

[2015] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NCN [2015] NSWCATGD 26
Hearing dates:	16 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Guardianship Division
Before:	M Spencer, General Member (Community)
Decision:	Financial manager order confirmed.
Catchwords:	FINANCIAL MANAGEMENT – requested review of financial management order by protected person – obligation of Tribunal to assist applicant to understand nature of proceedings and to facilitate the resolution of the real issues in dispute – financial management order confirmed – appointment of NSW Trustee and Guardian confirmed – no other suitable person – agreement to increase weekly allowance – recommendation made by the Tribunal about access to disability support services for person with hearing impairment
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW)
Category:	Principal judgment
Parties:	Mr NCN (applicant and protected person) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	25314
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal confirmed the financial management order it made on 29 September 2005 in relation to Mr NCN.

Background

2. Mr NCN is a 46-year-old single gentleman who is deaf and communicates using Auslan. He resides on his own in a NSW Housing unit in an inner-city suburb of Sydney.

3. Mr NCN has been known to the Tribunal since 2003. The Tribunal appointed the Protective Commissioner as Mr NCN's financial manager on 10 March 2003 with the order to be reviewed within twelve months. At the time of the hearing in 2003 it was reported Mr NCN had a history of substance abuse and a hearing impairment.

4. The Tribunal reviewed the financial management order on 5 March 2004 confirming the Protective commissioner as Mr NCN's financial manager and for the order to be reviewed within twelve months.

5. The Tribunal reviewed the financial management order on 29 September 2005 confirming the Protective Commissioner as his financial manager.

6. The Tribunal received an application from Mr NCN to review the appointment of a financial manager on 7 May 2015. Mr NCN reports there is a need to review the appointment of the financial manager as NSW Trustee and Guardian is withholding too much of his pension.

7. The Tribunal considered the application at a self-applicant directions hearing on 29 June 2015; Mr NCN did not make himself available for the hearing. The matter was adjourned for seven weeks with no directions given.

8. The Tribunal Officer wrote to Mr NCN on 16 July 2015 seeking contact regarding the application and the substantive hearing listed for 17 August 2015; Mr NCN has not responded to the Tribunal Officer's request.

9. The Tribunal considered the application on 17 August 2015 with the matter adjourned for a period of two months, as the Auslan interpreter booked for the hearing did not attend. The Tribunal are referred to the Reasons for Decision.

10. The matter before the Tribunal is an application to review the appointment of a financial manager.

The hearing

11. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing [appendix removed for publication].

12. In accordance with its obligations under s 36(1) and s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) to take such measures as are reasonably practicable to ensure the parties understand the nature of the proceedings and to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the Tribunal went to some lengths to clarify this point with Mr NCN.

13. In response to the Tribunal’s questions asked to clarify Mr NCN’s understanding of the nature of the proceedings and the issues he wished to have resolved as a result of the hearing, Mr NCN repeatedly held up before the Tribunal a Centrelink payment summary sheet and via the Auslan interpreter stated, “They are not giving me the right about of money.”

14. The Tribunal asked Mr NCN; “”Do you want the Order to be revoked. Do you want the order to stop and you look after your own money?” Mr NCN signed “No, No. I would give it out to people and never get it back.” He directed the Tribunal attention to the Centrelink payment summary sheet that was on the table and said via the Auslan interpreter, “I want my money managed but I want a new person to look after my money. The person who looks after my money is not giving me the right amount.”

15. The Tribunal accepted it was Mr NCN’s intent for the Tribunal to review the appointment of the current financial manager, the NSW Trustee and Guardian; and proceeded in hearing the application as lodged.

What did the Tribunal have to decide?

16. Mr NCN requested the Tribunal to review the appointment of the NSW Trustee and Guardian as manager of his estate because he was concerned he was not receiving an allowance commensurate with his fortnightly income from Centrelink.

17. On reviewing the appointment of the manager of the estate of Mr NCN, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of Mr NCN that the appointment be revoked.

18. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

19. The questions to be considered by the Tribunal were:

• Is it in the best interests of Mr NCN that the appointment of the NSW Trustee and Guardian be revoked?

• If so, who should be appointed financial manager?

Settlement

20. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement.

21. The Tribunal was able to assist the parties to reach agreement on the following issue: that Mr NCN receive an increase in his weekly allowance.

Is it in the best interests of Mr NCN that the appointment of the NSW Trustee and Guardian be revoked?

22. Mr Z, Client Service Officer, NSW Trustee and Guardian provided a written report to the Tribunal as well as participated in the hearing. Mr Z reported that Mr NCN is in receipt of a disability support pension ($647.30 per fortnight) and has in his NSW Trustee and Guardian Trust account a balance of $4,553.80. Mr NCN owes the State Debt Recovery Office (SDRO) $4,577.00 which is being repaid at $10 per fortnight via Centrepay. According to Mr Z, the NSW Trustee and Guardian is currently negotiating to have this SDRO debt waived.

23. Mr Z informed the Tribunal Mr NCN receives an allowance of $260 per week ($130 on Tuesdays and Thursdays), which is paid into his bank account (at the time the NSW Trustee and Guardian’s report was written there was a balance of $105.00 in this account). The NSW Trustee and Guardian charges Mr NCN’s estate a Management Fee of $3.50 per month.

24. Mr Z told the Tribunal that NSW Housing had recently contacted the NSW Trustee and Guardian in relation to concerns that non-tenants were staying at Mr NCN’s residence and ‘standing over’ him for money and taking his food.

25. The Tribunal spoke to a Specialist Client Service Officer at NSW Housing who confirmed that ‘Banning’ notices had been placed on Mr NCN’s residence due to concerns others were taking advantage of him.

26. Mr NCN appeared unaware of who his client service officer at the NSW Trustee and Guardian was. During the hearing, Mr NCN kept asking the interpreter to explain who Mr Z was. Moreover, Mr NCN was under the impression the Tribunal and the NSW Trustee and Guardian are ‘one and the same’ and he was seemingly unaware how to contact the NSW Trustee and Guardian to negotiate access to his funds.

27. During the course of the hearing, with the assistance of the Auslan Interpreter, Mr Z and Mr NCN successfully re-negotiated an increase in Mr NCN’s weekly allowance (from $260 to $340 per week) and the manner in which the allowance would be disbursed over the course of each week. Mr NCN stated he was happy with the proposed arrangement.

28. In relation to Mr NCN’s request to replace the current financial manager, the Tribunal asked Mr NCN if there was any relative or friend he wished to propose as a suitable person to be considered as an alternative financial manager to replace the NSW Trustee and Guardian. Mr NCN indicated that he had no one in his life that could act in this role.

29. On the basis of all this the Tribunal was satisfied that it is in the best interests of Mr NCN that the appointment of the NSW Trustee and Guardian as financial manager should be confirmed.

Recommendation by the Tribunal

30. The Tribunal was concerned that Mr NCN, due to his disabilities, has little means of communicating his needs to others, particularly to the NSW Trustee and Guardian. The Tribunal was also concerned by the evidence provided by the Specialist Client Service Officer from Housing NSW in relation to Mr NCN being very isolated and exploited by others. Moreover that Mr NCN told the Tribunal he currently receives no services and was unaware of how to access an Auslan interpreter to assist him access help in the community.

31. The Tribunal recommends that Mr NCN is referred to the Disability Services Unit within the NSW Trustee and Guardian for a specialist disability officer to assess and assist Mr NCN access advocacy and support, for example through the Deaf Society of NSW.

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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: 01 December 2015