BLB v NSW Trustee and Guardian

Decision at first instance

1. BLB sought a review of the decision of the NSW Trustee and Guardian under s 62(1) of the NSW Trustee and Guardian Act 2009 (NSW) (the NSWTG Act). In reviewing a decision, the Tribunal's function is to 'decide what the correct and preferable decision is having regard to the material then before it': s 63(1) Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The Tribunal may exercise all the functions vested in the NSW Trustee and Guardian and may affirm, vary or set aside the decision: ss 63(2) and (3) of the ADR Act. If the Tribunal sets aside the decision under review it may substitute its own decision (s 63(3)(c)) or remit the matter for reconsideration together with directions and recommendations (s 63(3)(d)).
2. The decision made by the NSW Trustee and Guardian was made under Chapter 4 of the NSWTG Act. Relevantly, s 39 of the NSWTG Act provides that any person exercising functions on under Chapter 4 of that Act must observe the following principles: It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation.
3. The Tribunal at first instance was therefore obliged to consider the principles set out in s 39 of the NSWTG Act when conducting the review and in deciding what was the 'correct and preferable decision.'
4. The Tribunal considered the background to the review at [6] to [21] which can be summarised as follows: 1. In May 2014 the NSW Trustee and Guardian decided to sell the family home and dispose of its contents. The trigger for the decision was said to be a debt of just over $5,000 owed by the protected person to the aged care facility where she resides. 2. Prior to this decision, the NSW Trustee and Guardian consulted with BLB and the stepdaughter of the protected person and invited comments on the proposed sale from both. 3. BLB responded by stating he opposed the sale because he had been living in the family home for about six years and most of that time he had acted as the protected person's sole carer. He claimed that he had paid all outgoings and performed and paid for many aspects of the home maintenance and repair to the house. He also stated that he was on a disability support pension and if the sale proceeded he would be left without a place to live. According to BLB, the protected person promised that he would be able to live in the property, which would be left to him in her Will. 4. The protected person's stepdaughter stated that BLB had 'preyed' on her stepmother to change her Will and if BLB wanted to remain in the property, he should pay market rent which she estimated to be at least $300 per week, backdated to when her stepmother moved into care. 5. Both BLB and the stepdaughter sought a review of the decision. 6. BLB argued that if the sale of the house proceeded he would be forced to relocate to another city to live with family members and, as a consequence, there would be no family or friends able to visit the protected person on a daily basis as he did. He also stated that he regularly took the protected person to her home for lunch, which allowed her to spend time with her dog. This could not continue if the house was sold. He gave an undertaking to cover any shortfall in expenditure requirements. The protected person's stepdaughter submitted that the NSW Trustee and Guardian should place the family home on the market for private rental and that her two sons would undertake any necessary repairs. 7. A delegate of the NSW Trustee and Guardian affirmed the original decision and decided that selling the family home would be in the protected person's best interests. Matters considered by the delegate were that the protected person would not return to her home, there was a shortfall of approximately $6,720 between estimated annual income and expenditure, she had an outstanding liability of $5,900, the full payment of which would leave protected person with minimal funds for the medical and other urgent needs, while BLB had agreed to pay the shortfall he had not agreed to pay market rent and renting the property privately had inherent risks. 8. The delegate considered there were three possible options: first, to do nothing, which would leave the protected person with an annual deficit of $6,720, secondly, to rent the property at $300 per week, which would give an annual surplus of $2,706, or, thirdly, to sell the property and invest the proceeds which would give an annual surplus of $3,369. The delegate noted that while BLB had offered to cover the cash shortfall, there were doubts he would be able to meet the additional costs of the cash shortfall given he was unable to pay the market rental. 9. An officer of the NSW Trustee and Guardian spoke to the protected person in May 2014 to obtain her views but noted that that she was not confident the views expressed represented an 'informed view.'
5. The Tribunal noted at [25] that the protected person currently received no income from her principal asset, being her home at Regional NSW. It was also noted that, after payment of the debt to the aged care facility, she would have cash reserves of about $1,500 and her estimated annual expenditure currently exceeds her annual income by about $7,000. It was further noted that the home would no longer be treated by Centrelink as an exempt asset after October 2015 and, as a consequence, the protected person's age pension would decrease, which would leave the protected person vulnerable to further a further shortfall.
6. The Tribunal noted at [26] that the parties agreed the current situation was "unsustainable" and identified three options. The first was to sell the home, the second was to rent the home on the private rental market, and the third was to allow BLB to remain in the home on condition that he meets any shortfall between income and expenditure.
7. The Tribunal, in considering these three options, concluded that the second option was the least attractive (at [27]). While the Tribunal accepted that the primary advantage of the third option was to enable continued contact between the protected person and BLB (at [28]), it ultimately rejected the third option and decided that the first option was in the protected person's best interests.
8. Tribunal's consideration and findings in relation to this issue are set out at [29] to [37]. Relevantly, the Tribunal concluded as follows: 34 The task of making the correct and preferable decision requires an evaluation of the relative merits of Options 1 and 3, having regard to the principles listed in s 39 of the Trustee Act and any other relevant considerations. Given the protected person's multiple health problems, impaired decision-making capacity and inability to resume a "normal life in the community", the principles listed in paragraph (a) (best interests) and paragraph (g) (protection from neglect, abuse and exploitation), of s 39, are of particular relevance. 35 The options favoured by each party bring a degree of risk. Under that favoured by BLB there is a real risk that he will be unable to fund the shortfall between the protected person's income and expenditure and, as a consequence, the protected person will be denied care and services necessary for her health and well-being. Under the option favoured by the Trustee, there is a real risk that the regular contact between BLB and the protected person will come to an end. 36 The concept of "best interests" is invariably difficult to apply because reasonable minds may differ as to what course may be in a person's best interests. While there is merit in the option favoured by BLB, given my misgivings about his ability to fund, in a timely fashion, the current and future shortfall between the protected person's income and expenditure, I have decided that it poses an unacceptable risk to her interests and welfare. In my opinion her interests will be best served by the sale of the family home notwithstanding the likelihood that as a result, BLB will be unable to continue to visit her on a regular basis. 37 For these reasons I have decided to affirm the decision under review.

Grounds of appeal and submissions of the parties

1. BLB's grounds of appeal were set out in his notice of appeal and his written and oral submissions. In summary, BLB contended: 1. The Tribunal at first instance concluded it was in the protected person's best interests to sell her home because there was no evidence he could fund any shortfall between the protected person's income and expenditure in the future. 2. He had evidence he could fund the shortfall, being a statement from his superannuation fund dated 2 July 2015 which recorded BLB had a balance of $403,439.13 as at 30 June 2015 and that these funds could be withdrawn in lump sums on three to four days' notice after written application. (The Appeal Panel was provided with a copy of this letter and details of BLB's superannuation statement). 3. This evidence would have been available if BLB had understood the Tribunal was proposing to make an adverse finding about this. 4. The Tribunal should have put him on notice that this was a critical issue before making this finding and failure to do so was a breach of procedural fairness. Alternatively, there was no evidence to support the finding that he did not have funds to meet the shortfall and this was an error of law. 5. BLB was prepared to fund the shortfall and enter into an agreement to give effect to this and to pay two years of the estimated shortfall in advance. 6. BLB had entered into recent negotiations with the NSW Trustee and Guardian about these issues but officers had requested that he pay all annual expenses, estimated at $21,453, so that the protected person's pension could be paid into a trust account with the NSW Trustee and Guardian to accrue. This was unreasonable and would increase the fees payable to the NSW Trustee and Guardian based on the increase in funds held in the trust account. 7. This failed to take into account the protected person's best interests, as supported by a letter from the protected person's general practitioner dated 20 October 2015 which was also provided to the Appeal Panel. The general practitioner stated that he had been the protected person's doctor for 30 years and had known BLB since about 2008. The general practitioner opined that visits of the protected person to her home were important to her and her "family home should be preserved if at all possible."
2. Having regard to the above matters, BLB submitted that the decision should be set aside and substituted with a decision that the protected person's home not be sold so that he could be allowed to pay any shortfall into the future.
3. The NSW Trustee and Guardian submitted that the appeal should be dismissed on the following basis: 1. The appeal was lodged out of time and BLB provided no satisfactory explanation for the delay. 2. The appeal does not raise an error of law. There was no denial of procedural fairness as all the relevant issues were raised and considered by the Tribunal at first instance. 3. Leave should not be given in any event because: 1. The offer made by BLB to pay any shortfall was considered by the Tribunal at first instance in its decision of 24 April 2015 and the most recent offer was in similar terms. There was no change in circumstances; 2. The evidence about BLB's ability to fund the shortfall was dependent on his attitude at some date in the future. This was noted by the Tribunal at first instance and remains the case; 3. The NSW Trustee and Guardian had been notified that the home of the protected person would no longer be exempt for Centrelink purposes and this would adversely impact her financial position, although the extent of the impact was not known at this stage.

Should BLB be given an extension of time?

1. The relevant principles to be applied in the exercise of the discretion to extend time were considered by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The matters to be considered include the length of any delay, the reasons for the delay, whether the appellant has a fairly arguable case, and the extent of any prejudice suffered by the respondent. It is for the applicant of the extension of time to establish that strict compliance with the rules would constitute an injustice (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR; (1990) 64 ALJR 458). It may be necessary to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see Jackson at [22(4).
2. BLB's explanation for his delay was that he was commuting between his sister's house and the house at Regional NSW at the relevant time and he did not read the decision until 20 June 2015. His sister had cancer and he was assisting her. He also had health issues but did not provide a medical certificate or particulars of his illness. According to BLB, he appealed as soon as possible after reading the decision. We accept this submission and BLB's explanation for delay, which was not challenged by the NSW Trustee and Guardian.
3. There has been a delay of about six weeks, which we accept is significant. However, the NSW Trustee and Guardian provided no evidence or submissions about prejudice. For instance, there was no evidence that the NSW Trustee and Guardian had commenced marketing the property for sale or had taken action to evict BLB in this period. Furthermore, BLB has raised questions of law and, while we ultimately rejected those grounds, prima facie his grounds were arguable.
4. The Appeal Panel therefore determined to give BLB an extension of time to lodge his appeal.

Does BLB's appeal raise a question of law and if so was there error?

1. BLB's submissions raise two questions of law, namely, whether there was a denial of procedural fairness and whether the Tribunal made findings without any evidentiary basis.
2. BLB contended that if the Tribunal was proposing to make an adverse first finding about his capacity to fund any shortfall, it should have put him on notice of this and allowed him to provide evidence to refute this finding, as he has now done.
3. We reject this ground.
4. Section 38(5) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, 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 a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
5. These provisions reflect the well-established obligations on a decision-maker, including a Tribunal, to afford procedural fairness to a party whose interests may be affected by a decision.
6. The issue of whether BLB had sufficient funds to meet any shortfall was an issue considered by the delegate of the NSW Trustee and Guardian in the internal review. There were submissions made by BLB in relation to the issue of his financial capacity (referred to by the Tribunal at [12] and [18]). BLB submitted that he could not afford to pay market rental to occupy the protected person's home and, based on this information, the delegate stated as follows: I'm not sure he [BLB] will be able to meet the additional costs of the "cash shortfall".
7. As noted by the Tribunal at first instance at [31] the delegate "squarely raised" the issue of BLB's capacity to fund any shortfall. BLB was on notice that this was a relevant issue in the review proceedings. On 16 September 2014, the Tribunal made orders directing the parties to file and serve the material on which they wished to rely prior to the hearing. BLB raised the issue in his closing submissions (see [24] and [31]) but provided no evidence.
8. BLB was given the opportunity to present his case. He was aware his capacity to fund any shortfall was an issue and he could have provided evidence to corroborate his submission prior to the hearing yet it was only after he read the reasons for decision that he decided to obtain such evidence. The capacity of BLB to fund any shortfall was clearly a relevant matter considered by the Tribunal in determining the correct and preferable decision. It was also material that BLB's assurance about providing funding was "dependent on BLB's attitude at some future date" (at [31]).
9. As noted by Katzmann J in P v Child Support Registrar [2015] FCA 116 at [109]: …procedural fairness does not require that the Tribunal disclose what it is minded to decide or that it give a running commentary on what it thinks about the evidence.
10. The Tribunal was not obliged to tell BLB it was minded to reject his application unless he could provide written evidence he had capacity to fund the shortfall. BLB apparently raised the issue in his closing submissions but did not seek an adjournment to provide evidence to substantiate his claim. We accept the submission made by the NSW Trustee and Guardian that this issue had been "squarely raised" prior to the hearing. Given the potential prejudice to the protected person in further delaying determination of the matter, it was appropriate for the Tribunal to proceed on the basis of the material provided. BLB was given an opportunity to present his evidence on this issue, he was on notice this matter was material and in dispute but he did not raise it until closing submissions and provided no substantiation.
11. We are therefore not persuaded there was a denial of procedural fairness in the circumstances of the case.
12. Nor are we satisfied that the Tribunal made a finding without any factual basis. Where there is no evidence capable of supporting a finding, there is an error of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390). However, as observed in Fordham v Davies [2014] NSWCATAP 60 at [22] citing the relevant authorities, "once there is some evidence for a finding, any error is one of fact not law."
13. The relevant finding by the Tribunal was that there was a "real risk" BLB would be unable to fund the shortfall between the protected person's income and expenditure.
14. In this case, there was evidence from BLB that he was not able to pay market rent because he was on a pension. He repeated this submission to the Appeal Panel. BLB had been directed to provide material and submissions in support of his application for review. He provided the material and his submissions but no evidence to support his contention he could fund any anticipated shortfall. As such, there was evidence before the Tribunal about BLB's financial capacity and in our view this evidence supported a finding that there was a real risk BLB would be unable to fund any shortfall. This ground of appeal fails.
15. Accordingly, we are not satisfied there has been an error of law by the Tribunal at first instance.

Should BLB be given leave to appeal?

1. Having decided there is no error of law, the question that arose was whether BLB should be given leave to appeal on the merits.
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65] to [79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. In this case BLB submitted leave to appeal should be given and he should be given leave to rely on new evidence, being the letter from his superannuation provider about his available funds. The NSW Trustee and Guardian submitted there was no significant change in the circumstances.
5. The Appeal Panel decided to refuse leave for the following reasons: 1. The new evidence from BLB may have been material to a critical finding by the Tribunal at first instance (refer EE v Protective Commissioner [2008] NSWADTAP 35) but this did not warrant the exercise of the discretion to give leave to appeal in the circumstances of the case. The Appeal Panel may allow or dismiss an appeal and may confirm, affirm or vary the decision under appeal or set aside the decision and substitute its own decision or remit the matter for reconsideration (s 80(1) of the Act). However, it is doubtful in this case whether any of these orders would have utility or benefit. 2. This is because there has been significant change to the protected person's circumstances since the decision under review was made. 3. Those circumstances include the fact that there is no longer a debt owed to the aged care facility because there had been an adjustment made to the protected person's entitlements, presumably through Centrelink. In addition, there were further changes likely to be made to the protected person's entitlements under the social security legislation, and therefore finances, but the detail of these changes was not yet known. This information is relevant to the question of any shortfall. 4. It is also relevant that there have been recent negotiations between the NSW Trustee and Guardian and BLB about proposals to fund the protected person's expenditure. As part of these discussions, BLB made a proposal to provide security for the funding of the protected person which included, as proposed by BLB, prepayment of two years of expenses and, at the request of the NSW Trustee and Guardian, the execution of a document to record and ensure compliance with any arrangement. The NSW Trustee and Guardian submitted that this proposal was similar to those previously made but we do not accept this contention. There are a number of elements of the proposal and subsequent negotiations which are materially different to those initially proposed and subsequently discussed at the hearing. Those negotiations were not finalised or agreed at the time of the appeal and were dependent on the information referred to in (3) which was not available at that time. 5. Given the significant change in circumstances and the time that has passed since the administrative review decision was made in May 2014, the NSW Trustee and Guardian would be obliged to consider the new information and proposal, having regard to the findings made by the Tribunal below at [28] about the advantages to the protected person in having continued access to BLB and her home, to decide whether a new or different decision should be made. 6. Even if the Appeal Panel decided to give leave to appeal and to allow BLB to rely on new evidence, the change in circumstances was so significant and uncertain at the time of the hearing of the appeal such that the Appeal Panel could not properly determine the matter. Nor would there be any utility in remitting the matter to the Tribunal at first instance for reconsideration.
6. In summary, this is not a case where, for instance, there is an injustice that is reasonably clear or an issue of principle or public importance. Moreover, there would seem to be little or no real utility in giving leave to appeal. The negotiations between the NSW Trustee and Guardian and BLB, based on the change in circumstances and the new proposal, have not run their course. There is no reason why these negotiations should not continue. The NSW Trustee and Guardian conceded that this was the case at the hearing of the appeal. These discussions may result in a different or similar decision but either way there are further processes available for review.

Conclusion

1. Having regard to the above matters, the Appeal Panel: 1. Granted the appellant an extension of time to lodge the appeal; 2. Dismissed the appeal in so far as the appellant raised questions of law; and 3. Otherwise refused leave to appeal.
2. In publishing these reasons, the Appeal Panel has determined that for privacy reasons, it is appropriate that no details identifying the appellant, the protected person or her stepdaughter, should be published (s 64(1)(a) the Act).

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2016