S v Accident Compensation Corporation
[2015] NZHC 3304
•18 December 2015
PERMANENT SUPPRESSION OF APPELLANT'S NAME ORDERED BY DOBSON J ON 2 JULY 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-277 [2015] NZHC 3304
UNDER The Accident Compensation Act 2001 IN THE MATTER OF
An appeal against a decision of the District Court on a question of law under section 162 of the Accident Compensation Act 2001
BETWEEN
S Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 24 August 2015 Counsel:
Appellant in person (by his litigation guardian) C J Curran for Respondent
Judgment:
18 December 2015
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
2 pm on the 18th day of December 2015
S v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 3304 [18 December 2015]
[1] The appellant (S), who has name suppression, was born prematurely in October 1989. As a result of an incubator failure he sustained significant injuries, for which he has cover under the accident compensation regime. S lives with his parents (F and J) who care for him on a full time basis. F is her son’s litigation guardian. She ably represented his interests in this appeal.
[2] The appeal concerns a decision taken in January 2010, following a reassessment by the Accident Compensation Corporation (ACC or the Corporation) of S’s needs, to change the way in which “sleepover care” was funded for him. S successfully sought a review of that decision and the previous sleepover care funding was restored. But ACC’s subsequent appeal to the District Court resulted in the reinstatement of the ACC’s original decision.1 It is that District Court decision that is the focus of this judgment.
BACKGROUND
The statutory matrix
[3] As the term suggests, “sleepover care” constitutes the care that is required by a claimant during the night. It falls under the umbrella of what the Accident Compensation Act 2001 (the Act) calls “attendant care”. The statutory context for the funding of such care is, briefly, as follows.
[4] In general terms, s 67 of the Act provides that a claimant who has suffered a personal injury by accident is “entitled to an entitlement” if he or she is afforded cover by, and is eligible under, the Act. Section 68 states that the Corporation provides entitlement in accordance with the Act and is only obliged to do so to the extent required by the Act. In those cases where the Corporation has a discretion as to payments or entitlements that discretion must be exercised consistently with the Act.
[5] The concept of “entitlements” is elaborated in s 69, which defines them to
include “rehabilitation, comprising treatment, social rehabilitation, and vocational
1 Accident Compensation Corporation v S [2013] NZACC 97 (DC).
rehabilitation”. Section 81 defines “key aspect of social rehabilitation” as including
“attendant care” which, in turn, cl 12 of the First Schedule says:
(a) means:
(i) personal care; and
(ii) assistance with cognitive tasks of daily living, such as communication, orientation, planning, and task completion; and
(iii) protection of the claimant from further injury in his or her ordinary environment; and
(b) includes training a person to provide attendant care, if the
Corporation agrees to fund the training; but
(c) does not include child care, domestic activities, or home maintenance
[6] As I have said, care required by a claimant during the night (“sleepover care”) falls within this definition.
[7] Section 81(3) then provides that the Corporation is liable to provide a “key aspect of social rehabilitation” to a claimant if the conditions in subs (4) are met. Those conditions are that:
(a) a claimant is assessed or reassessed under section 84 as needing the key aspect; and
(b) the provision of the key aspect is in accordance with the Corporation's assessment of it under whichever of clauses 13 to 22 of Schedule 1 are relevant; and
(c) the Corporation considers that the key aspect—
(i) is required as a direct consequence of the personal injury for which the claimant has cover; and
(ii) is for the purpose set out in section 79;2 and
(iii) is necessary and appropriate, and of the quality required, for that purpose; and
(iv) is of a type normally provided by a rehabilitation provider; and
2 The purpose of social rehabilitation set out in s 79 is “to assist in restoring a claimant's
(d) the provision of the key aspect has been agreed in the claimant's individual rehabilitation plan, if a plan has been agreed.
[8] In terms of s 81(3)(a), s 84 deals with assessments and reassessments of a
claimant’s need for social rehabilitation.3 Section 84 relevantly provides that:
(3) A claimant's need for social rehabilitation—
(a) may be reassessed from time to time; and (b)
must be reassessed if the Corporation considers that the claimant's condition or circumstances have changed.
(4)
The
matters to be taken into account in an assessment or
reassessment include—
(a) the level of independence a claimant had before suffering the personal injury:
(b) the level of independence a claimant has after suffering the personal injury:
(c) the limitations suffered by a claimant as a result of the personal injury:
(d) the kinds of social rehabilitation that are appropriate for a claimant to minimise those limitations:
(e) the rehabilitation outcome that would be achieved by providing particular social rehabilitation:
(f) the alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way:
(g) any social rehabilitation (not provided as vocational rehabilitation) that may reasonably be provided to enable a claimant who is entitled to vocational rehabilitation to participate in employment:
(h) the geographical location in which a claimant lives: (i) in the case of a reassessment,—
(i) whether any item that the Corporation provided for the purposes of social rehabilitation is in such a condition as to need replacing:
(ii) changes in the claimant's condition or circumstances since the last assessment was undertaken.
3 Assessments and reassessments may either be performed by the Corporation itself or may be
[9] And in terms of s 81(3)(b), the further specific conditions relating to the provision of attendant care are found in cl 14 of the First Schedule. Clause 14 provides:
In deciding whether to provide or contribute to the cost of attendant care, the
Corporation must have regard to—
(a) any rehabilitation outcome that would be achieved by providing it; and
(b) the nature and extent of the claimant's personal injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; and
(c) the extent to which attendant care is necessary to enable the claimant to undertake or continue employment (including agreed vocational training) or to attend a place of education, having regard to any entitlement the claimant has to education support; and
(d) the extent to which household family members or other family members might reasonably be expected to provide attendant care for the claimant after the claimant's personal injury; and
(e) the extent to which attendant care is required to give household family members a break, from time to time, from providing attendant care for the claimant; and
(f) the need to avoid substantial disruption to the employment or other activities of household family members.
[10] Pulling all these legislative threads together, the critical decision-making process in a case such as the present is as follows:
(a) ACC exercises its discretion to conduct a reassessment of the
claimant’s need for rehabilitation (attendant care) under s 84;
(b)any such reassessment was required to take into account the matters listed in s 84(4), including the existence of alternative more cost- effective ways of providing the relevant social rehabilitation (attendant care);
(c) if, as a result of the reassessment, the claimant is found to need attendant care (as defined, and as a result of the relevant personal
injury), then ACC is required to provide or contribute to the cost of it under s 81(3), after taking into account the matters listed in cl 14, which include the extent to which:
(i)family members might reasonably be expected to provide attendant care for the claimant; and
(ii)attendant care is required to give household family members a break, from time to time, from providing attendant care for the claimant.
[11] It may be noted that, in exercising its cl 14 discretion, ACC may choose only to make a contribution to attendant care. This is no doubt a reflection of the underlying principle that ACC’s role under the accident compensation scheme is to “cushion” against the consequences of an accident, rather than provide full restitution.4 Decisions in the District Court in relation to attendant care recognise that the matters listed in cl 14 of sch 1 may constitute reasons why ACC might not provide the full amount of rehabilitation recommended following an assessment or reassessment,5 and reflect a parliamentary expectation that family members will
supply at least some of the attendant care without financial assistance.6
Factual matrix
[12] The relevant facts are not in dispute.
[13] As at January 2009, S was receiving funding from ACC as follows:
(a) Attendant care level 1 from family or private carer: 48.5 hours per week.
(b) Home-help from private individual: 3.6 hours per week.
4 Accident Compensation Commission v Nelson [1979] 2 NZLR 464 (CA) at 466; Accident
Rehabilitation and Compensation Insurance Corporation v Campbell [1996] NZAR 278 (HC) at
285-287.
5 Thomas-Hiddleston v Accident Compensation Corporation [2015] NZACC 80 (DC) at [46], [48], and [54].
6 Kururangi v Accident Compensation Corporation [2015] NZACC 153 (DC) at [87].
(c) Oversight supervision: 59.5 hours per week. (d) Sleepover care: 56 hours per week.
[14] The funding for 56 hours of sleepover care per week was thus provided irrespective of the amount of time actually spent looking after S on any given night.
[15] ACC arranged for a reassessment of S’s support needs in relation to his entitlements under the Act. The reassessment took place on 4 February 2009 at his home.
[16] On 20 February 2009 a 24 page Support Needs Assessment (SNA) was completed by the assessor. The SNA recorded that, in relation to overnight needs:
[S] wakes approximately 2 times each week with worries. [F] usually tells him to go back to bed however at times he needs to be accompanied back to his bed and the issue discussed briefly … [F] reports that this settling can take up to 1 hour.
…
[S] continues to present with significant anxiety that impacts on all areas of
his functioning…”
…
[S’s] behaviour impacts on all areas of family life. As [F] and [J] are the
main supports for [S] it is important that they are supported as caregivers.
[17] On 29 April 2009 ACC issued a decision (the first decision), which removed the 56 hour sleepover allowance. But following an application by S for review, that decision was revoked voluntarily by ACC on 12 November 2009. The first decision is therefore not in issue on this appeal.
[18] On 28 January 2010, ACC issued the attendant care decision which is the subject of the present appeal (the second decision). The second decision was also based on the reassessment of S’s care needs recorded in the February 2009 SNA. Inter alia, the second decision approved funding for night care on the following alternative bases:
Either Attendant Care Level 1 – Family or private carer up to 3 times per night, and less than 2 hours in total per night.
Actual hours provided up to
14 hours per week
Or:
Attendant care by family more than
3 times per night, or exceeding 2 hours in total – sleepover care
Actual nights provided, please arrange directly with ACC as required
Or:
Night care provided by non household member; sleepover care
Actual nights provided, please arrange directly with ACC as required
[19] In effect, therefore, ACC approved funding for night care options that covered the actual hours of care provided by the appellant’s household family members up to a minimum threshold, and full nights beyond that and, alternatively, fully funded night care if provided by a non-household member. That last option enables S’s family to arrange respite care if and when was needed.
[20] S sought review of this aspect of the second decision. A review hearing was held on 31 August 2010.
[21] On 22 November 2010, the reviewer overturned the second decision on the basis that the Corporation had failed adequately to consider or balance the reasonable care expectations of household family members under cl 14(d) of sch 1 of the Act.
[22] The reviewer said that the second decision unreasonably required the appellant’s mother to be “permanently ‘on call’ at night” and to provide night care all night for seven days a week and 365 days a year.7
[23] As I have said, ACC appealed the review decision to the District Court. In his judgment allowing the appeal Judge Beattie said:8
7 Mr Curran submitted and, again, I am inclined to accept, that it therefore seems that the reviewer may not have appreciated that the attendant care package involved three different options, including payment of a full night’s respite sleepover care where required.
8 Accident Compensation Corporation v S, above n 1.
[15] As I have noted, a Supports Need Assessment was carried out by a specialist in January 2009 to identify what were the full needs of the respondent for attendant care payment, and it was identified in that assessment that the respondent was only waking up approximately two times each week with worries and that he was accompanied back to bed and the total time on each such occasion would be approximately one hour. Thus it is the case that one hour two times a week is a significantly lesser sum required than 58 hours per week, which had been the previous position.
[16] It is the case that although the appellant did acknowledge and accept that assessment, it did in fact make a decision that was significantly greater than simply allowing for two hours per week, and as I have set out earlier in this decision, three different provisions were set out in the new attendant care decision of January 2010, and where there were three options which could be claimed by the respondent, depending on the particular situation that arose.
[17] It is to be noted that the first option provided for 14 hours per week of payment, irrespective of how often lesser than that assistance was required; and then there were two provisions which allowed for full-time attendant care overnight, either from the respondent's parents or from a non- household member brought in for the purpose, and it was the case in that decision that payment would be made on an hourly basis for the periods that those other night care requirements were in fact undertaken.
[18] Having considered the nature of the appellant's decision of
28 January 2010, I cannot see how it can be considered as not being a correct exercise of the appellant's discretion under Clause 14, as it did provide for
assistance as and when that assistance was required because of the
respondent's overnight circumstances.
[19] In those circumstances I find that the review decision just has no basis as a correct exercise of a discretionary decision when it simply provides for a single sum on a weekly basis of a maximum amount per night and has no regard for the actual circumstances that may or may not occur during any particular week.
[20] The nature of the appellant's decision is not one which requires the respondent's parents to be engaged as it were all night, every night, as was submitted by Counsel for the Respondent, and the situation of the respondent's parents being covered by payment for such occasions and times as they may be required is totally appropriate. There has been no evidence that the appellant's mother has had to stay up all night, every night, to keep an eye on the respondent, and I find that such would need to be the case if payment were to be made on the basis of night care of 56 hours per week. That is just not a factual situation which exists.
The application for leave to appeal
[24] S sought leave to appeal this review decision under s 162 of the Act. Leave was granted by Judge Henare on 24 March 2015 on the following “question of law”:9
Did the District Court make an error of law in finding that the respondent’s primary decision was an appropriate exercise of its discretion to provide attendant care in relation to the circumstances of the applicant living at home with his parents?
[25] I observe at this point that simply to ask whether there is an (unspecified) error of law in a particular finding does not, in my view, accord with s 162. Posing a question of law in that general way is quite unsatisfactory. Putting to one side the issue of whether a decision-maker has “appropriately” exercised his or her discretion can ever constitute a question of law, on its face, the question posed here effectively turns what is intended by the legislature to be a focused, legal, inquiry into some kind of general appeal. In my view it cuts across Parliament’s intention in imposing the requirement for leave in a fundamental way.
[26] It seems to me that I must attempt to proceed on the basis of the leave that was granted, subject to the imperative that this cannot be a de facto general appeal. I propose to do this by assuming that the question which the Judge was persuaded met the threshold relates to the more specific matters she refers to in the course of her leave judgment. She began by quoting from S’s submissions that:
1.We believe Justice [sic] Beattie in his decision to allow ACC's appeal based on discretion with regard to the issue of night care provision is erroneous in point of law …
4.On pages 21 & 22 within Part 7 of ACC 4202 there are specified areas designated for the Assessment of:
SLEEPOVER, ACTIVE NIGHTS & 24 HOUR CARE.
These areas give very specific instruction and scope to the Assessor as to what is required for the SLEEPOVER, ACTIVE NIGHTS & 24
HOUR CARE section of the assessment to be carried out.
However, within the Assessment that was carried out for S, pages 21
& 22 have been left blank, no specific assessment or review was
9 S v Accident Compensation Corporation [2015] NZACC 71 at [17].
carried out for SLEEPOVER, ACTIVE NIGHTS or 24 HOUR CARE as prescribed for within this assessment by the assessor, even though a referral for a review and full assessment be completed as described in 2. above. This is noted within the 'Synopsis of submissions from the Respondent' Page 2, No. 7 to the District Court at the hearing on 3 April 2013 which gives ACC's original decision for Service Approval dated 29 April 2009 that "the main change is the removal of the sleepover allowance which ACC no longer considers appropriate to pay to family members who sleep in their own beds." Our understanding is that it is S's fundamental right to a FULL assessment for entitlement under the Act' not his family and it has no bearing on whether family members sleep in their own bed, no law appears within the Act with the above statement when referring to 'Assessment Entitlement' however Justice [sic] Beattie has ignored this point in his decision whilst repeatedly noting that S has had a Full Assessment. This simply did not happen as evidenced in the ACC 4202 document, part 7, pages
21 and 22.
…
8.ACC supplied to Justice [sic] Beattie at the District Court Hearing on the 3 April 2013 within their 'Supplementary Submissions of Counsel for the Appellant' a 4 page overview of the 'FIM/FAM'. This 'scaling' tool is primarily used to assess client skill within an inpatient situation after injury as stated within the 4 page overview provided. There is no SPECIFIC allowance made within the FIM/FAM scale pertaining to SLEEPOVER, ACTIVE NIGHTS &
24 HOUR CARE, that is in part 7, pages 21 and 22. This is clearly NOT what the FIM/FAM scale is in place to ascertain within the ACC 4202 Assessment document, it is a 'client skill based' measurement outcome tool to assess the skill and abilities of the client and it is this section that ACC based their discretionary allowance for a 'three alternative night care provision' on, within the FIMIFAM scale- 'Emotional Status' ACC 4202- Page 8.
9.Justice [sic] Beattie has considered wrongly in principle by allowing ACC to use Part Three of the FIM/FAM Scale as the correct basis for discretion for night care when it is clearly wrong as it is not the correct assessment tool within the document to do so, it is to assess the skill and abilities of the client. As we have stated previously the area specifically designated for Assessment of SLEEPOVER, ACTIVE NIGHTS & 24 HOUR CARE to be carried out is within Part Seven of the Assessment document ACC 4202 pages 21 & 22.
[emphases in original]
[27] By way of summary, her Honour then noted:
[12] In both the submissions in support of the application for leave to appeal and the reply submissions filed on behalf of the applicant it is submitted that Judge Beattie considered that a full assessment of the applicant's needs for attendant care had been undertaken. The applicant
submitted this was not the case and the Corporation exercised its discretion when it made its decision, on an incorrect factual basis.
[13] The respondent opposes the leave to appeal application being granted on the grounds that Judge Beattie correctly determined the appeal and no bona fide and credible "let alone the required error of law" arises for resolution by the High Court. Specifically, the respondent submitted the sole issue before the Court was the second stage exercise of discretion, not the first stage, that is "whether the applicant in fact required attendant care over night, and what the assessment form (ACC 4202) recorded".
[28] Her Honour’s decision was then recorded as follows:
[14] Having considered the points raised by the applicant and the respondent with reference to the judgment, I am satisfied that a question of law has been identified that is "capable of bona fide and serious argument".
[15] In particular, the respondent argued that the issues now raised by the applicant were not before the Court, "let alone addressed by the Court". In paragraph [15] of the judgment, Judge Beattie noted the Supports Need Assessment was undertaken for the purpose of identifying "what were the full needs of the respondent for attendant care payment". Whilst His Honour was focussed on the purpose of the Supports Need Assessment, it appears he did not take into account that a significant part of the assessment for sleepover, active nights and 24 hour care within the assessment document was not completed.
[16] In turn, the full needs of the applicant for attendant care payment were not considered or correctly assessed and not properly taken into account when the respondent exercised its discretion. This would appear to confirm the applicant's contention that His Honour did not consider that the assessment document was flawed, and affected the basis upon which the respondent exercised its discretion. On this basis, the way in which the respondent exercised its discretion does give rise to an issue as to the appropriateness of the discretion being exercised.
[29] The conclusory nature of the first sentence of [16] is unfortunate, particularly given that it seems that the “proper” completion of the SNA was a new issue which ACC had not had the opportunity to address. But in any event, the above indicates that the real (or more precise) question in respect of which leave was granted was:
Did the learned District Court Judge err in proceeding on the basis that the February 2009 SNA reflected a full assessment of, and correctly recorded, S’s needs for attendant care?
[30] I do not propose to consider here whether or not that constitutes a question of law properly so called. The important point is that it wholly accords with the focus
of F’s submissions before me. Accordingly, that is the question that I propose to address in the appeal.
Further ground/application to adduce further evidence
[31] Before turning to consider the question I have just articulated, however, it is also necessary to refer to S’s application to adduce further evidence in the appeal under High Court Rule 20.16. More particularly, she wished to refer to an email chain between ACC’s case manager (Mr Woods) and the independent assessor in which the case manager expressed a wish to attend the assessment, and made an observation that S “seems to be receiving excessive hours of attendant care”.
[32] In the application, S alleges that:
… this evidence directly relates to flaws in ACC’s process in obtaining an independent assessment of the appellant’s needs for the purposes of reviewing the appellant’s entitlement to night time attendant care.
[33] In submissions, however, a more tentative inference was drawn. F submitted that this evidence “may” reveal “an element of predetermination” on the part of ACC in relation to S’s attendant care, or that the independent assessor “may have been influenced” by the case manager’s views.
Discussion
[34] There is no dispute that further evidence may on occasion be adduced in an appeal on a question of law.10 However Mr Curran submitted that there must be very special reasons to allow fresh evidence in such an appeal.11 He said that no such reasons have been identified in this case and that the authority relied upon by S is distinguishable. Legal Services Agency v McDonald-Wright concerned background
information intended merely to help the Court understand the particular policy at issue whereas the information sought to be adduced here raises a new factual
allegation of predetermination.12
10 Terrace Tower (NZ) Pty Limited v Queenstown Lakes District Council [2001] 2 NZLR 388 (HC).
11 C H and D L Properties Limited v Christchurch District Licensing Agency (2010) 20 PRNZ 680 (HC) at [34] and [42].
12 Legal Services Agency v McDonald-Wright HC Wellington CIV-2009-404-6356, 16 February
2010.
[35] Although at the hearing I was prepared to receive the evidence on a de bene esse basis, in the end I accept Mr Curran’s submission that the evidence sought to be adduced here is neither cogent nor material to the resolution of the question of law on appeal and accordingly does not meet those basic conditions for admissibility of fresh evidence.13
[36] As to cogency, the tentative view expressed by the case manager in the email is not cogent evidence that a decision made a year later (and by a different ACC official) was flawed. Further, there is no evidence at all that the independent assessor conducting the SNA was in fact influenced by the case manager’s observation.
[37] As to materiality, any suspicion of predetermination or influence arising from the email does not draw support from the content of the SNA itself. The SNA was not completed by the case manager. In my view the report was rightly considered by the District Court to be “substantial” and comprehensive.14
[38] In formal terms, therefore, the application to adduce it is declined. [39] I turn now to consider the appeal itself.
Did Judge Beattie err?
[40] As I have said, it was apparent from F’s articulate submissions at the hearing before me that her principal concern was that the SNA form had not been completed in what she perceived as a critical respect. She said that this not only led to ACC making the wrong decision but was reflective of a policy change within the Corporation whereby sleepover care would no longer be provided to family members who slept in their own beds while providing such care.
[41] And as recorded in Judge Henare’s judgment, F’s submission that the SNA
was incomplete is based on:
13 See Re Greenpeace New Zealand Ltd [2011] 2 NZLR 815 (HC) at [32], citing generally Telecom
Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA).
14 Accident Compensation Corporation v S, above n 1, at [4].
(a) a failure to complete the sections pertaining to “Sleepover, Active nights or 24 hour support” on pages 21 and 22 of the SNA report form; and
(b)reliance on comments made in the FIM/FAM assessment in relation to emotional status, which the appellant submits is the wrong place in the SNA form for an assessment of his care needs.
[42] I begin by noting that S is able to do a number of things for himself and to participate in a limited but meaningful way in the community. I am sure that much of his ability and progress is due to being supported and cared for by his parents in a loving home environment. But I do not underestimate for one minute how demanding it is to care for him. I appreciate how tiring and relentless it must be. Broken sleep – whether it is for seven or for two nights a week – adds considerably to this.
[43] But there are a number of fundamental difficulties with S’s position in this
appeal.
[44] First, ACC does not accept that the SNA form was filled out incorrectly or incompletely. Mr Curran made submissions about why this was so but I do not intend to rehearse them here. The more fundamental points are that:
(a) there is nothing which suggests that any clear challenge was made by S to the needs assessment of “2 hours per week for night waking” at the review hearing;15
(b)the case law recognises that courts should be cautious before interfering with an SNA undertaken by an assessor with the necessary specialist experience. For example, the courts have pointed to the need for contrary specialist evidence,16 or clear evidence that an
assessment was made on wrong principles.17 The court itself is not
15 The District Court below recognised the absence of evidence supporting the reviewer’s decision.
16 Hoffman v Accident Compensation Corporation [2007] NZACC 25 (DC) at [31]-[33].
17 Anderson v Accident Compensation Corporation [2006] NZACC 208 (DC) at [30].
equipped to make its own assessment, and the views of non experts (such as parents, spouses, and even treating medical professionals) cannot generally supplant an expert assessment.18
(c) the Court was provided with no competing specialist assessment of S’s overnight care needs, and the Court has no other reason to doubt the expert findings in the SNA; and
(d)a second appeal limited to a question of law is, in any event, the wrong environment in which to raise such a new challenge to the evidence/facts.
[45] Secondly, even assuming that the SNA did materially understate the level of S’s overnight needs, the second decision is (as Mr Curran said) flexible enough to accommodate and address that. ACC has, in effect, agreed to fund whatever the actual level of overnight care S requires, through the various options contained in the decision.
[46] More particularly, to the extent that the minimum threshold is exceeded on a given night, under option 2, ACC will pay a full night’s sleepover care regardless of the amount of care over the threshold that is required. In addition, option 3 offers S’s household family members the opportunity to engage an external provider to provide night care. I agree with Mr Curran that the decision represented a tailored and flexible approach, with the capacity to respond to S’s current and future needs as they developed (whether as a matter of hours or full nights). The net effect of S’s position is that ACC should be compelled to pay for care that is not actually given.
[47] Thirdly, I might be inclined to agree with the appellant that there would be legal difficulties if ACC had adopted some overriding new policy whereby the cost of sleepover care would not be met for family members who sleep in their own bed. But the existence of any such policy is belied by the decision in this case. I am therefore inclined (again) to agree with Mr Curran that the impugned attendant care
decision was, if anything, generous. In addition to the night time care package, it
18 Smith v Accident Compensation Corporation [2012] NZACC 233 (DC) at [34]-[36].
also provided for 112 hours of day time care (equivalent to 16 hours per day). Accordingly, he said, the only contribution sought from the appellant’s household family members (in terms of cl 14(d) of sch 1 of the Act) is that they forgo payment while they sleep (unless the level of disturbance exceeds a minimum threshold, in which case they would be paid for a full night, including sleep time). That seems to me to be a liberal approach, given my outline of the statutory scheme and the case law to which I have referred above.
Result
[48] Accordingly the answer to the question posed by Judge Henare (as reinterpreted by me) is “no”. The appeal must be dismissed for the reasons I have given. I make an order accordingly.
[49] I record that ACC did not seek costs on this appeal.
Solicitors: Russell McVeagh, Wellington
Copy to: The Appellant
Rebecca Ellis J
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