PV v NSW Trustee and Guardian

[2011] NSWADTAP 37

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

PV v NSW Trustee and Guardian [2011] NSWADTAP 37

Hearing dates:

5 August 2011

Decision date:

22 August 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
C Huntsman, Judicial Member
Dr B Field, Non-Judicial Member

Decision:

(1) Leave for the appeal to extend to the merits of the Tribunal's decision is refused.

(2) The Tribunal's decision is affirmed.

Catchwords:

APPEAL - question of law - procedural fairness - reasonable opportunity to present case - leave to extend appeal to the merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

Cases Cited:

K v K [2000] NSWSC 1052
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146

Category:

Principal judgment

Parties:

PV (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

In person (Appellant)
C Phang, NSW Trustee and Guardian (Respondent)

File Number(s):

119017

 Decision under appeal 

Citation:

PV v NSW Trustee and Guardian [2011] NSWADT 89

Date of Decision:

2011-05-04 00:00:00

Before:

General Division

File Number(s):

103193

REASONS FOR DECISION

Introduction

1. APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), C HUNTSMAN (JUDICIAL MEMBER), DR B FIELD (NON-JUDICIAL MEMBER)): PV has appealed against a decision of the Tribunal affirming a decision of the NSW Trustee and Guardian to sell his mother's house. The appeal is made on a question of law. PV also seeks leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act , s 113(2)).

1. PV's mother is now 94 years old and lives in a nursing home. The NSW Trustee and Guardian has been appointed to manage her financial affairs and to make decisions about where she is to live. On 6 November 2009 a decision was made to sell PV's mother's home for various reasons including that she was then living permanently in an aged care facility and the proceeds of the sale were needed to ensure that she had sufficient funds to meet her expenses. Following an internal review decision on 14 December 2009, the decision to sell the house was varied.

1. Essentially the varied decision was that, on the basis that PV and both of his brothers agreed to the property being leased at full market value, the sale of the property would be reviewed in 12 months time. Alternatively, if the property was left vacant, all three brothers could agree to accept the risk of the property being uninsured. The property would not be sold as long as $25,000 was deposited in PV's mother's trust account within 30 days.

1. PV communicated with the NSW Trustee and Guardian following this decision including by phone on 19 January 2010 and by letter on 22 January 2010. PV confirmed in the letter that he accepted the decision to pay $25,000 into his mother's account. The letter went on to seek clarification of various matters including whether a relative could rent the property and whether the $25,000 could be considered as an interest free loan to be repaid from the estate. PV also said that he had confirmed with the insurer that the property would remain insured as long as certain requirements as to occupancy were met.

1. A file note dated 9 April 2010 records that "... payment of $25,000 p.a. (by each of [the three adult children]) within 30 days from the Reasons for Decision letter (dated 14/12/09) was one of the conditions set by Elaine Tamblin (sic) to secure the property from sale. Further it was advised that 'If the above points are not mutually agreed to the property is to be sold as per Ms Tracey Williams original decision.'" The NSW Trustee's delegate spoke to PV again on 4 May at which time he offered to pay $8,000 to cover his mother's immediate expenses and to talk to his brothers about renting the property. PV made that payment but continued to query why the NSW Trustee needed to consult with his brothers.

1. On 6 August 2010 the NSW Trustee decided that the home should be sold. PV applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision and PV now appeals to the Appeal Panel.

1. PV applied to the Appeal Panel for a stay of the decision that the property be sold. The NSW Trustee consented to the stay but noted that a stay did not prevent them from obtaining an agent's report or a valuation. A stay was granted pursuant to s 60 of the ADT Act , preventing the home being sold pending the hearing. As of the date of this decision, the stay is no longer in effect.

Procedural fairness

1. The Tribunal must afford procedural fairness to each party: ADT Act , s 73(2) and (4). In particular, the Tribunal must take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

1. We understand PV's appeal on a question of law to be that the Tribunal breached the rules of procedural fairness because he did not understand the nature of the assertions made in the proceedings (s 73(4)(a)) and he was not given the fullest opportunity practicable to be heard (s 73(4(c)).

Understanding the nature of the assertions

1. According to PV, he was under the impression that the only issue to be resolved at the hearing was whether or not his mother derived any benefit from visiting her home. We have interpreted this ground of appeal to be that the Tribunal has breached s 73(4)(a).

1. After his mother had moved into the nursing home, PV obtained permission to take her for visits to her former home and found that she was very happy when he did so. In 2009 PV's mother broke her leg which prevented her from having any home visits for some time. He resumed the visits in 2010.

1. In support of his submission that he thought that the benefit his mother derived from visiting her home was the central issue, PV referred to a letter that the Public Guardian's delegate, Mr Vyse, wrote to Ms Phang, the representative of the NSW Trustee dated 5 October 2010. That letter was in response to a letter Ms Phang wrote to Mr Vyse on 2 September 2010 asking certain questions including whether the Public Guardian had consented to PV's mother staying overnight at her home. In answer to that question, Mr Vyse wrote:

The Public Guardian understands that PV does sometimes take [PV's mother] to her home in [name of suburb deleted] during the two-hour outings and that they sit in the car outside the property. According to the Nursing Unit Manager, [PV's mother] would not be able to comprehend that she is at her home due to the severe level of her dementia.

1. PV said that this issue, which he considered to be the central issue in the hearing, was not discussed at the hearing.

1. We are not persuaded on the basis of the content of the letter of 5 October 2010, or any other circumstances, that PV was under the impression that the only issue before the Tribunal was whether or not his mother derived any benefit from visiting her home. PV applied to the Tribunal for a review of the decision to sell the property. No one ever told him that the only issue in the proceeding would be whether or not his mother derived any benefit from visiting her home. The letter Mr Vyse wrote was in answer to several very specific questions Ms Phang asked of him. PV knew after he applied to the Tribunal that if the matter were not resolved by agreement, the Tribunal would be determining whether or not the property should be sold.

Inadequate opportunity to present his case

1. PV says that he was not given the "fullest opportunity practicable" to be heard or otherwise have his submissions considered. In particular, he says he was not given an opportunity to address the following assertions made by the NSW Trustee:

(1) that he did not comply with the conditions referred to in the internal review decision;

(2) that he would not pay for companion care for his mother or for other expenses if he disagreed with the need for those expenses;

(3) that he could not be relied on to make payments on his mother's behalf; and

(4) that his mother derived little benefit from visiting her home.

Compliance with conditions in internal review decision

1. PV says that he was not given an adequate opportunity to explain why he and the NSW Trustee had not reached agreement in relation to the sale of his mother's house. He referred to the comment about insurance in the internal review decision which was that, if the property was not leased:

... [PV and his brothers] are all to agree to accept the risk of [their mother's] home being uninsured and the exposure to potential financial loss to [their mother] of this decision.

1. Prior to the hearing the NSW Trustee made inquiries about the insurance position and was told that the home remained insured as long as it was not unoccupied for a continuous period of 90 days. The NSW Trustee informed PV of their change of view prior to the hearing. The Tribunal was aware that this was no longer an issue.

1. PV insisted that he could not agree to pay his share of the $25,000 to his mother's estate, as envisaged by the agreement with the NSW Trustee, when that agreement was based on a false premise about the insurance. He said that the Tribunal had wrongly assumed that it had been his fault that agreement had not been reached.

1. PV said that he would have come to the Tribunal hearing prepared to talk about the insurance issue if he had known that it was a matter of contention. Ms Phang submitted that it was not a matter of contention because it had been agreed, prior to the hearing, that the property was insured.

1. PV says that at [6], [21], [31] and [33] of the decision, the Tribunal implied that he was at fault in not reaching agreement with the NSW Trustee about paying $25,000 to meet his mother's expenses. He says that he accepted the NSW Trustee's offer by letter of 22 January 2011. He also emphasised that he paid $8,000 into his mother's account as a gift.

1. The relevant parts of the Tribunal's decision to which PV refers are:

[6] Following the internal review of the original decision, some months passed by in order to allow the decision of the review officer to be considered and arrangements to be put in place if PV and his brothers agreed to the terms set out above.

[21] It was argued for the NSW Trustee and Guardian that a substantial period had been allowed in order to see whether the conditions referred to in the review officer's decision could or would be met by PV and his siblings. This has not eventuated. In view of the debts which have been incurred in the estate and the expenditure required to be met in order to ensure that PV 's mother can receive the care and comfort to which she should be entitled, it remained necessary for the home to be sold.

[31] It is important to note that recognising the arguments put by PV originally in response to the first decision made and reviewed by the NSW Trustee and Guardian, the decision was varied upon review in order to provide the opportunity for PV and his siblings to put arrangements in place in order to relieve the financial difficulty in which the estate presently finds itself by the leasing of the home and the provision of funds referred to in the reasons for that decision. Given the time which was allowed for these matters to be considered and given that no such commitment was received from PV and his siblings, the decision was made on 6 August 2010 that the home should be sold.

[33] The Tribunal recognises that the sale of the home, which the Tribunal was informed was designed by PV 's mother and built by his father, is a sad decision. However, in all of the circumstances, the Tribunal is satisfied that, there having been time allowed for alternative options to be pursued, the only course remaining open is to have the home sold in order that the manager of the estate can continue to manage it in the best interests of PV 's mother. This will be done by providing the funds necessary to meet the current debts and the recurrent expenses to the extent the latter are not covered by the age pension.

1. These extracts make it clear that one consideration the Tribunal took into account was that PV and the NSW Trustee had failed to reach agreement as to a satisfactory alternative to selling the property. PV submitted that he accepted the NSW Trustee's proposal that $25,000 per annum be paid into his mother's account. By letter of 22 January 2011, PV says he offered to pay $25,000 per annum either immediately or by two instalments. However, in the same letter, PV requested 'clarification' of certain issues including whether the funds could be in the form of an interest free loan to be repaid from the estate. Further documents provided by the NSW Trustee and Guardian pursuant to s 58 of the ADT Act , including the file note referred to above at [5], demonstrate that it was not just the fact that the NSW Trustee had made an incorrect assumption about the insurance that prevented agreement from being reached.

1. The fact that agreement had not been reached was a relevant consideration for the Tribunal to take into account and no error of law is disclosed.

1. In addition, PV was given a reasonable opportunity to explain why agreement had not been reached between himself and the NSW Trustee. He agreed that he was given an adequate opportunity to give his evidence and that he was permitted to say whatever he wanted to say at the hearing in support of his application.

Companion care issue

1. PV said that he did not realise that the issue of whether he would pay for companion care for his mother was such a contentious issue. Ms Tamblyn, the person who made the internal review decision, gave evidence towards the end of the hearing that, "There is still an unresolved dispute of what [PV's mother] needs to have paid for her and there is a concern the authorised visitor's recommendation for companion care - there is a concern that if PV were to be providing funds if he disagrees with an expense we would have no option but to not provide a service or a requirement because there would be no funds available to make that decision."

1. According to PV, the authorised visitor did not recommend companion care. In her report at Tab 3 of the section 58 documents the authorised visitor states that:

There has been a suggestion of [PV's mother] having a paid companion, though currently her funds do not permit this. There was general agreement that this would be beneficial, though Ms Buchanan, NUM, thinks that the current level of social activity is good, she noted that if [PV's mother] could afford this, a trial could be arranged for three months. I would recommend that if the property is sold and [PV's mother] has much greater liquid assets, then this should be trialled for three months. It is [PV's] view that this would not replace the benefits of the current arrangement of his mother visiting her home which he believes enhances her lifestyle and well being.

1. PV says that he was not given an opportunity to respond to Ms Tamblyn's evidence. If he had been given that opportunity he would have said that the authorised visitor's report did not recommend companion care - it was to the effect that his mother should not have companion care unless she could afford it. Furthermore the companion care issue was the only issue about which PV disagreed whereas Ms Tamblyn's evidence suggested that there was more than one expense to which he objected.

1. PV's account of the authorised visitor's report is somewhat misleading. It is clear that she was recommending a trial of companion care but that PV's mother would not be able to receive the benefit of that care unless she could afford it. PV's suggestion that Ms Tamblyn was saying that he had objected to more than one expense is also somewhat misleading. She did not say that PV had objected to other expenses being incurred. She was speculating that since he had not seen the need for companion care, it is possible that if he did not see the need for other expenses in the future, he would not be prepared to pay for those expenses. PV emphasised that just because he disagreed with his mother receiving companion care that does not mean that he would not pay for it if required.

1. PV had the fullest opportunity practicable to tell the Tribunal what his intentions were in relation to the payment of his mother's expenses. The transcript discloses that he spent some time doing so. After hearing all the evidence, the Tribunal reached the view at [28] that there was a "potential for disputes to arise as to whether particular expenditure should be incurred in the estate. . ." It made no error in the process of coming to that conclusion.

Making payments on his mother's behalf

1. PV submitted that he was not given an adequate opportunity to respond to the Tribunal's doubt that he had the capacity and the intention to pay his mother's bills.

1. At [28] of the reasons for decision the Tribunal states:

In the course of addressing the Tribunal, PV indicated that he may be prepared to meet expenses for his mother which are incurred in respect of her estate in order to ensure that the home is retained provided that he can then be treated as a creditor of the estate. It was indicated to PV that there was no evidence as to the extent of his financial circumstances and whether he was in a position to assure the Tribunal or the NSW Trustee or Guardian that he was in a position to make good any undertakings he gives to meet any or all of the expenses incurred in relation to his mother's estate. PV then gave some detail in relation to his financial circumstances, the effect of which to indicate that he is a person who has considerable assets at his disposal and may be taken to be someone in a position to meet the excess of expenses over income on his mother's estate if he wished to do so.

1. PV says that he gave unequivocal evidence to the Tribunal that he was prepared to pay all his mother's expenses and that he paid an amount of $8,000 without objection. The transcript that PV provided demonstrates that he said that he would not "unreasonably withhold" any funds for his mother's care. He said that he was a "reliable payer" and that he would not dispute bills. Ms Phang's understanding was that PV was prepared to lend his mother the money, not give it to her. She expressed the view that it made more sense to sell the house than for PV's mother to go into further debt. She also said that it would be necessary to consult with PV's siblings before agreeing that the estate should incur such a debt.

1. A reading of the version of the transcript provided by PV reveals that PV was given a reasonable opportunity to present evidence as to his financial situation and his ability and willingness to pay his mother's expenses. He did not challenge Ms Phang's understanding that he was prepared to lend his mother the money, not to give it to her, and the Tribunal found that to be the case.

1. It was not an error of law for the Tribunal to find that PV expressed the view that he " may be prepared to meet expenses for his mother which are incurred in respect of her estate in order to ensure that the home is retained provided that he can then be treated as a creditor of the estate." His evidence was not that he would pay her expenses regardless of their character. The Tribunal's finding reflects his evidence.

Whether his mother derived benefit from visiting her home

1. At [17], the Tribunal referred to PV's evidence about whether his mother benefited from visiting her former home:

It is PV's firm view that his mother obtains a sense of her identity from the home, the location and the neighbours. In his opinion she has an awareness when she is there that it is her home and he notices a clear change in her when she is at the home in that her faculties are enhanced while she is there. Accordingly, even though she does not live there anymore, in his opinion it is very beneficial for her to have the home available to visit when he is able to take her there during times when he is staying in Sydney. PV acknowledged that if his mother lost any cognitive ability there would be little point in taking her to the home, but he believes that she has not reached that stage at present and that she should receive the benefits of regular attendance at the home by him taking her there during his stays in Sydney but these benefits will cease to be available to her if the property is sold.

1. At [27] of its decision, under the heading "Reasons", the Tribunal said:

The Tribunal notes PV's evidence to the effect that his mother obtains great benefit from her visits to the home with him and that he notices that she experiences improvement in her level of impairment by returning to visit the property. On the other hand, a file note dated 23 June 2009 contained in the s.58 documents provided to the Tribunal indicates that the director of nursing from the aged care centre has advised that in her view the visits to the home are of little benefit to PV's mother.

1. It is apparent from these passages that the Tribunal did refer to the evidence about PV's mother's capacity to derive enjoyment from visiting her former home.

1. The opinion expressed by the Nursing Unit Manager that PV's mother's visits to her home were of very little benefit was recorded in a file note contained in the s 58 documents. That file note, as well as other documents that the NSW Trustee considered to be relevant to its decision, was served on PV as required by s 58 of the ADT Act . A direction was made for him to file and serve any evidence or submissions in response to that material by 19 December 2010. PV did not file any evidence or submissions prior to the hearing. Instead, he tendered evidence at the hearing including two references and a medical report relating to his mother. No objection was made to the tendering of the evidence at that stage.

1. We are satisfied that PV was given the fullest opportunity practicable to respond to the material in the documents filed pursuant to s 58 of the ADT Act, including the opinion expressed by the Nursing Unit Manager in the file note.

Extension to merits

1. PV applied for leave for the appeal to be extended to the merits of the Tribunal's decision on the same grounds as outlined above: ADT Act , s 118B(1)(b).

1. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpret s 67(1)(b) of the Guardianship Act 1987 which is the equivalent provision to s 118B(1)(b) of the ADT Act in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. There is nothing on the face of any of the grounds of appeal which raises broad questions of administration or policy or the applicability of policy to individual cases. Nor has PV persuaded us that the Tribunal went about the fact finding process in an unorthodox manner or in a way which is likely to produce an unfair result.

Order

(1) Leave for the appeal to extend to the merits of the Tribunal's decision is refused.

(2) The Tribunal's decision is affirmed.

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Decision last updated: 22 August 2011