It was acknowledged by the applicant that he has a cognitive impairment, however he does not agree that he has a mental incapacity as defined in the Guardianship and Administration Act 1993. The applicant argued that there is no need for an administrator due to his access to informal supports such as a guardian appointed under a guardianship order and NDIS support workers.

The Public Trustee submitted that the applicant is vulnerable and has demonstrated impulsive and poor financial decision-making. The Public Trustee presented evidence to the Tribunal outlining the applicant's history of buying cars and then reporting them as stolen, or re-selling them for a lower price, along with evidence that the applicant had amended his tax return in order to purchase a car without informing the Public Trustee. It was also submitted that the applicant had been attempting to access his superannuation funds to buy a car. The Public Trustee further raised that the applicant had previously been involved in concerning legal matters such as a breach of bail conditions, and had recently spent a period in incarceration.

The Tribunal Member considered all of the relevant material provided to the Tribunal at first instance and on review and found that the Tribunal Member at first instance was correct to find that the applicant has an ongoing mental incapacity and is unable to manage his finances.

• The finding of mental incapacity was the correct finding, and there was no evidence at first instance or on review to show that the applicant can manage his finances with informal supports;
• The administration order is required and should remain in place; and
• No arguable case can thus be made, meaning the Tribunal does not grant permission for the applicant to bring the application for internal review.

Internal review - Guardianship and administration - Administration orders - Variation or revocation of administration order - Limited administration order

Guardianship and Administration Act 1993 ss 57, 64

South Australian Civil and Administrative Tribunal Act 2013 s 70

Re AKS [2016] SACAT 19

Mr A Bickle, Legal Services Commission, appeared for the applicant

Mr R Lawton, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

The Order under review and the grounds of review

1. This is an application brought by CUD for the internal review of a decision made by Member L Clark on 6 August 2024 in the original jurisdiction to affirm but vary an Administration Order (AO).
2. The Tribunal varied the AO from a full AO to a limited AO. The Public Trustee (PT) is still the appointed administrator, but the responsibility of the administrator is limited to managing the whole of the protected person's estate and any income (such as his Centrelink entitlements), apart from any income received by the protected person from any employment he may obtain.
3. The application brought by CUD in the original jurisdiction had been for the revocation of the AO so is he unhappy with the decision.

1. The applicant, whilst happy with the variation to a limited order, submits that he can manage his finances with informal support and that the AO should be set aside in its entirety. He is unhappy with the terms of the current limited Order.
2. In instructions, Mr Bickle submits that the applicant is a thirty-year-old man with diagnoses of an Intellectual Disability (ID), Attention Deficit Hyperactivity Disorder (ADHD), Attachment Disorder, Anxiety Disorder and a well-established attachment and anxiety disorder related to an extensive trauma history. The applicant experienced ongoing abuse and abandonment in his childhood. The applicant was subsequently placed in foster care in 2007 around the age thirteen. He then lived in a series of residential care placements as a teenager. As an adult, the applicant has lived in various forms of accommodation, including with friends, in motels and in supported accommodation.
3. The Public Advocate is appointed as the applicant's guardian. That order is not challenged.
4. The applicant has a substantially well-funded NDIS plan for his disability supports and is in receipt of a Disability Support Pension (DSP). The applicant resides in a house alone in Elizabeth Downs, in Supported Independent Living accommodation. The applicant receives daily support from NDIS support workers, provided by his support agency, 'My Support My Way'. The applicant has expressed a desire for increased financial independence from the PT. He would like the opportunity to demonstrate that he is able to make all of his financial decisions.
5. By the terms of the current AO, the PT still manages his DSP, but the recently varied AO will allow the applicant to retain and manage the funds earned from any employment.
6. Recently the applicant had a job in a recycling factory, although I am told he is currently unemployed. It is not clear why he lost that job, but there was a submission from his Counsel that this was something to do with the limited hours that he is permitted to work before it will affect his DSP. Earlier last year (before the 2024 hearing) the applicant had employment in a fast-food restaurant. The evidence on the file indicates that he lost that employment due to some criminal charges, resulting in his incarceration.
7. Whilst the applicant acknowledges that he has a cognitive impairment as a result of the above diagnoses he does not agree that he continues to have a mental incapacity as defined in the Guardianship and Administration Act 1993 (the G&A Act) in terms of the management of his finances. His counsel argues that, alternatively, if he does have some decision-making incapacity regarding his finances, there is no need for an order because there are informal supports in place, and he has accommodation and support with activities of daily life via his NDIS plan.
8. The applicant agrees that he needs support in some areas of his life. He has a guardian appointed under a Guardianship Order (the Public Advocate) and a very detailed and well-funded NDIS support plan,[1] but he says that his ability to manage his finances is not completely impaired and can be managed with informal supports.
9. His counsel, Mr Bickle, submits that the NDIS support workers who work with him every day (from 'My Support My Way') are professionals and can provide him with any informal support to manage his finances as required.
10. The Tribunal was informed that the level of support provided to the applicant under the NDIS plan is support with activities of daily life of four hours per day, seven days per week. The NDIS plan reveals that the PT will provide support with the management of his finances. This is unfunded by the NDIS.
11. The applicant brought a support worker along to the hearing. As it transpired (on questioning by the Tribunal Member) that person is not an employee of the NDIS funded support agency 'My Support My Way' but is employed by another agency called 'Charlie's Support Services Angels'. According to the support worker, his agency wants to be the agency to provide support to the applicant in the future, and the worker told me that the applicant wanted them to be his support agency. The support worker informed the Tribunal that he is currently providing some support to the applicant for free. I found this information to be somewhat unusual given that another approved agency is already providing funded support to the applicant under an approved plan. No doubt the plan manager (the delegated guardian from the Office of the Public Advocate) will find this to be of some interest also and may wish to investigate this issue.
12. In terms of the qualifications of NDIS support workers to provide high level financial support, the support worker confirmed that he provided support with activities of daily living with his current employer to persons with NDIS funded support via his agency. He explained that he might assist people to access their funds for a taxi fare, for example, but he agreed that he does not have the financial management skills to provide in depth financial support to the applicant.
13. The applicant concedes that he has past difficulties with gambling but says he has taken steps to address these difficulties and has "barred himself from gambling". He has apparently seen a counsellor about this problem, but I have not seen a report from that person.
14. The applicant instructs that he has managed his salary from his employment to date and is committed to using his money wisely, purchasing his clothing and food responsibly.
15. Mr Bickle submitted that the applicant has recently purchased another car for $1000, which he has registered. Apparently, this was put forward by the applicant to demonstrate that the applicant has the wherewithal to save his earnings and manage such financial transactions without support. (I gather that this is a more recent vehicle purchase than those mentioned by the PT.)
16. In terms of the PT's concerns about repeat vehicle purchases, Mr Bickle suggested the concerns were misguided and that the applicant is just a man with a keen interest in motor vehicles.

1. Mr Lawton made no submissions but provided various reports including a statement of financial circumstances, portfolio valuation report, a budget and an interim client statement. This was supplemented with some evidence from 'Mary', the applicant's personal estates officer.
2. Of significant concern to the Tribunal are the issues raised by the PT regarding current matters of concern, which suggest significant vulnerability (both personal and financial) and evidence of the applicant's poor and/or impulsive financial decision-making skills. These include:
   • Various legal matters involving the applicant, including a breach of bail and a recent period of incarceration, plus a report from his supports and the Public Advocate about his multiple reports of sexual assault to SAPOL.
   • A concerning history of vehicle purchases (PT approving 5 x purchases of vehicles), which were subsequently stolen or sold/traded for a much lower price than the purchase price. The last vehicle purchase supported by the PT was on 14 December 2023 and the vehicle was sold around 19 March 2024. The PT is no longer supporting his vehicle purchases from the cash held by PT given the history of his poor decision-making regarding vehicle purchases and sales. In a more recent vehicle purchase (not supported by the funds held by PT) the applicant said he had had purchased a car "in return for $100 and sexual favours".
   • On 20 December 2024, the applicant told the estates officer that he purchased another car and was making automatic bank transfers to a person (a friend) the friend was meant to sell the car for the applicant for $7000 but the car was then sold to someone else, and his money was not returned. The veracity of this story is unconfirmed.
   • Despite the PT managing the applicant's tax returns and refunds under the AO, the applicant amended his tax returns in 2022/23 and 2023/24, receiving the tax return funds without telling PT and spending those funds. According to a file note on 28 May 2024 he used some of the tax return to purchase a car for $1300, later selling it for $400.
   • The applicant has been attempting to withdraw his superannuation funds to buy a car - corroborated by Australian Super.
   • The applicant recently began paying money to a "credit score" company which involved him making direct debits from his bank account to an online company who had promised to assist in rectifying his credit reputation so he could get access to a car loan in the future. The applicant informed PT that the company was now chasing him for funds owed to them. The case officer from PT speculated that this sounded like a scam and that she had warned the applicant about this.
3. The applicant disputes the history of one of the vehicle transactions. His Counsel says that the vehicle transactions are not evidence of financial vulnerability but of the applicant's keen interest in cars.
4. At the hearing the Tribunal was informed that the applicant had recently purchased another car for $1000 and had registered it. The case officer from PT was not aware of this recent purchase which was presumably achieved from funds earned over and above the DSP.

1. An application for review is made under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). Section 70 of the SACAT Act requires that on review, the Tribunal must make the correct or preferable decision, taking into account the evidence available to the original decision-maker, giving appropriate weight to the original Order, and taking into account any other evidence the Tribunal considers is relevant and appropriate to take into account in the course of the review.
2. An application for internal review may only proceed with the permission of the Tribunal (s 64(c) of the G&A Act and s 70(1a) of the SACAT Act.). The question of permission was initially listed for determination on the papers as a preliminary point, but that question was then referred to the full hearing. I will determine the question of permission after having considered the merits of the matter on internal review.

1. The Tribunal's files indicate that an AO (Full) in respect of the applicant was first made by the Guardianship Board of SA on 9 August 2012 (a Guardianship Order was also made at that time and has continued in place since then, but that Order is not the subject of this review).
2. Since the making of the initial Order there have been various automatic reviews of the AO under s 57 of the G&A Act_,_ applications to vary or revoke the conditions of the Order and two internal reviews brought by the applicant, but on each occasion the AO has been affirmed.
3. It is appropriate to set out the history of proceedings in the Tribunal as this is relevant to this matter and to the question of permission:
   • An AO (Full) in respect of the applicant was first made by the Guardianship Board of SA on 9 August 2012.
   • On 22 October 2013 upon reviewing the AO pursuant to s 57 of the G&A Act, the Tribunal varied the order by limiting the PT to the administration of any future payments regarding victims of crime compensation.
   • The AO made on 22 October 2013, was reviewed by the former Guardianship Board on 19 September 2014. At that time, the PT was confirmed as the full administrator of the estate of the applicant.
   • On 9 June 2015, the Tribunal heard and dismissed an application made by the applicant to revoke the AO made on 19 September 2014. An application by the appointed communication person to vary the order was also heard and dismissed at the same time. The applicant lodged an application for internal review in relation to the dismissal order of 9 June 2015.
   • On 23 November 2015 the order on internal review was to remit the matter to the original jurisdiction of the Tribunal for reconsideration of the application to vary or revoke the AO, in light of further evidence, including a report by Dr Emma Scamps, Neuropsychologist (dated 6 January 2016) concerning the mental capacity of the applicant to manage his own legal and financial affairs.
   • On 3 February 2016, the Tribunal reconsidered the application of the applicant to revoke the AO made on 19 September 2014. The application was again dismissed. The AO was, however, varied in respect to the person authorised to communicate with the PT on behalf of the applicant.
   • On 3 February 2016, the applicant made an application to the Tribunal for the revocation of the AO. That application was dismissed on the papers on 15 August 2016 following a failure by the applicant to comply with directions issued by the Tribunal on 14 June 2016.
   • On 27 September 2016, the Tribunal confirmed the appointment of the PT as the full administrator of the estate of the applicant.
   • On 31 October 2017, the Tribunal reviewed the AO made on 27 September 2016 and again confirmed the appointment of the PT as the full administrator of the estate of the applicant.
   • On 21 August 2018, the applicant made a further application for the revocation or variation of the AO. The application was dismissed on being withdrawn by the applicant.
4. On 4 December 2020 and again on 8 January 2024 the AO was confirmed on the papers on automatic review.
5. An application to vary or revoke the AO was lodged on 25 March 2024. This application was listed before Member Clark and adjourned part heard with the final order made on 6 August 2024 to vary the AO to the Limited Order which is subject to this review.

Consideration of review grounds: no arguable case - permission not granted

1. I have considered all of the material placed before the Tribunal at first instance and the material tendered on review. I have considered the remarks made by Member Clarke at the initial hearing.
2. I am comfortably satisfied that the Tribunal Member at first instance was correct to find that the applicant has an ongoing mental incapacity in relation to the ability to manage his finances and that the AO is still required and should remain in place.
3. Had I been required to do so (if I had granted permission for the review to proceed) I would have found that the correct and preferable decision on review is to affirm the orders made by Member Clarke in the ordinary jurisdiction. I consider that the decision to vary the order to permit the applicant to manage his wages is the correct or preferable decision, although I have some disquiet about that decision. In my view the evidence supports a full AO remaining in place to protect the applicant's finances and to protect him from being preyed upon by other persons for his assets and cash.
4. However, it is important to address the question of permission to seek an internal review in this matter.
5. In that regard I note that an internal review may only proceed on a grant of leave (permission) and that the test is whether it is just in all the circumstances to do so, determined by reference to whether the applicant has an arguable case, and whether there is a principle or interest at stake that would warrant a grant of permission.[2]
6. The Tribunal adopts the following approach as set out by Justice Parker in Re AKS [2016] SACAT 19 (at para 14) in determining whether or not leave should be granted:

"... the Tribunal should take the same approach to the exercise of its discretion ... to grant permission for an internal review as is taken by the Supreme Court when it decides whether or not to grant permission for a civil appeal. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration."

7. I am not satisfied that it is appropriate to grant permission for the applicant to seek an internal review in this matter given that the protected person challenges the finding that he has a mental incapacity regarding financial management but has not adduced any additional evidence on internal review to refute the overwhelming evidence about that issue that is before the Tribunal.
8. There is, similarly, no evidence before me to establish that the applicant can manage his financial decision making with informal support.

1. The applicant's counsel concedes the diagnosis of various conditions and accepts that the applicant has a cognitive impairment, which affects his ability to manage some aspects of his life. However, he challenges the extent of impairment in relation to the applicant's ability to make financial decisions. I note that no contrary expert evidence has been tendered to support that submission.
2. The expert evidence and collateral evidence placed before the Tribunal by the PT is overwhelmingly against that submission.
3. I accept that the applicant has a complex cognitive impairment brought about by multiple diagnoses of Intellectual Disability (ID), Attention Deficit Hyperactivity Disorder (ADHD), and a well-established attachment and anxiety disorder related to an extensive trauma history. In addition, the applicant has a diagnosis of Chronic Schizophrenia for which he receives depot antipsychotic medication every month from a general practitioner.[3]
4. The applicant has also been diagnosed with a Borderline Personality Disorder with antisocial personality traits. In her report dated 10 January 2024 (which was prepared for the purposes of a court ordered assessment) the forensic psychiatrist Dr Jessica Lowe states:

An intellectual disability is an enduring neurocognitive disorder that involves problems with intellectual functioning (such as learning, problem-solving and judgement) and adaptive functioning (such as activities of daily living including communication and independence). These deficits are permanent and unchanging.

A personality disorder is an enduring personality style that impacts how an individual interprets and interacts with the world, often in a dysfunctional way that negatively impacts on relationships and day to day functioning.

A borderline personality disorder is characterised by difficulties with unstable emotions, negative self-image, interpersonal and rejection sensitivity, paranoia, impulsive and reckless behaviour, chronic suicidality and self-harming...there are limited treatment options for borderline personality disorder.

Dr Lowe considered that the applicant's Schizophrenia condition appeared to be in remission given his good adherence with anti-psychotic medication to date.

[The applicant's] intellectual disability poses enduring challenges for him demonstrated by chronic difficulties with impulsivity, aggressive and reckless behaviour and vulnerability to negative influences that have resulted in his legal difficulties and placements in custody.

... the deficits from the intellectual disability can be mitigated by ensuring adequate and tailored disability support services are in the place in the community to buffer his deficits and minimise his vulnerability. [The applicant's] personality vulnerabilities and sensitivity to rejection present an enduring destabilising factor that, when combined with his intellectual disability, make him vulnerable to impulsive actions ...

1. I accept the evidence before me that the applicant's complex mental illnesses and intellectual disability are illnesses, disorders and an impairment of the brain or mind and that they impact significantly on his ability to manage his finances and his other financial and personal affairs. The findings made by the Member about incapacity at first instance are correct.
2. In particular, I accept the expert opinion of the Occupational Therapist Ms K de Zeeuw regarding the conclusions reached in the money management assessment that she performed in June 2024.
3. Mr Bickle challenges the expertise of Ms de Zeeuw to comment about money management. I resoundingly reject that submission, which is not based on anything but a mere submission from the bar table about the perceived role of Occupational Therapists generally.
4. Not only is Ms de Zeeuw qualified to make that assessment, but I am also satisfied that she is extremely experienced in the field having worked as an Occupational Therapist since 2006 with over 17 years of experience working with clients with high and complex mental health needs, 15 years of experience working in public Mental Health Services, and post-graduate studies in Youth Mental Health. She also participates in ongoing professional development activities and clinical supervision from her colleagues. Money management and daily life capacity assessments for people with mental and physical disabilities are part of the usual professional responsibilities of qualified Occupational Therapists.
5. I am satisfied that Ms de Zeeuw conducted her assessments relying on well recognised assessment tools, namely:

• - World Health Organisation Disability Assessment Schedule 2.0 (WHODAS)
• - Vineland 3 Adaptive Behaviour Scales - referred to in previous OT FCA (de Zeeuw, 28 November 2023).
• - Allen Cognitive Level Screening (ACLS) - Appendix 1.

1. Further, I find that Ms de Zeeuw's report is extremely thorough, comprehensive and well written and is based on a review of relevant background information (reports reviewed):
   • - Occupational Therapy Functional Capacity Assessment, Katie de Zeeuw, 28 November 2023
   • - Neuropsychology Assessment, Dr Emma Scamps, 1 January 2016

• - With the applicant on 5 June 2024 at his home with a support worker.
• - With Billie, Personal Estates Officer, PT, 6 June 2024
• - With Caleb Mamman, Guardian, Office of the Public Advocate, 7 June 2024.

1. It is important to set out the summary of Ms de Zeeuw's findings after the money management assessment as follows:

[The applicant] is highly motivated and focused on his desire to gain greater financial independence. He is positively engaged in employment in the community. He reasonably considers he would like to reap the financial benefits of his employment and hard work and receive his weekly wages as a reward rather than these being absorbed into his Public Trustee account, for which he then feels he gets no financial benefit. The 'reward' of wages plays an important role in employment for many people, which also appears to be the case for [the applicant]. He has consistently engaged in various forms of employment over the years. > > However, a range of complexities are associated with increasing [the applicant]'s access to his finances and, essentially, his wages from employment. [The applicant] has displayed historic and ongoing challenges managing his finances due to his disability. This OT report evidences considerable cognitive deficits that heavily influence [the applicant]'s inability to manage finances, with challenges with problem solving, abstract thinking, impulsivity, and vulnerability. These cognitive deficits have far-reaching impacts on [the applicant]'s capacity to manage his finances. He is at high risk of exploitation and lacks awareness and skills in his capacity to fully understand and address this behaviour. He continues to be at high risk of impulsive decision-making, which places him at risk. There are ongoing reports of [the applicant] being at risk due to his level of vulnerability, with an incident as recent as in the past week of [the applicant] being sexually assaulted due to his vulnerability. Due to cognitive deficits and resultant risks to [the applicant], no changes are recommended to [the applicant]'s AO at this present time.

1. In addition to the professional assessment by Ms de Zeeuw, the report from the PT raises some very concerning red flags about the applicant's continued vulnerability and impulsive financial decision making. The applicant is clearly a very vulnerable man who is repeatedly preyed upon by other unscrupulous persons to his personal and financial disadvantage.
2. I am not at all satisfied that NDIS support workers providing support with the applicant's ADLs are qualified to provide the level of financial decision-making support required by him given the extent of his vulnerability and financial decision-making incapacity. There is no detailed evidence before the Tribunal to support that submission, for instance, there was no evidence placed before me as to the qualifications of any of the NDIS support workers to provide daily financial advice and support to the applicant.
3. I am not satisfied that financial decision-making support will be achieved to the level required by the applicant under the current NDIS plan by anyone other than the PT.

1. As I have not granted permission for the internal review, I will not consider the decision to vary the order in detail. I note that the AO was varied by Member Clarke to permit the applicant to manage his wages over and above the DSP. It is still too early to ascertain the success of the variation to the order, but it appears that the applicant has already purchased another vehicle. This is consistent with his previous pattern of impulsive financial decision-making.
2. Unfortunately, the PT's counsel, Mr Lawton, was unable to assist me with information about how much money a person can earn before this will affect their DSP. Accordingly, I have informed myself from a search of the internet and find that a person may earn some income from other sources whilst in receipt of the DSP, but the amount of earnings will impact the pension entitlement once earnings exceed a certain amount. This is because the DSP is only provided to persons who genuinely need financial support. Currently a single person can earn $212.00 per fortnight before the DSP starts being reduced. There is also a work-hour limit for DSP recipients (a person can work up to 29 hours per week and still receive DSP, as long as the person meets the income test).
3. There is evidence that the applicant has had a gambling problem in the past. I am not satisfied by submissions from the bar table that the problem has been satisfactorily addressed. I have not seen a counselling report. I am satisfied that the applicant remains vulnerable to financial abuse, exploitation and the personal mismanagement of his estate.
4. Nevertheless, I note that clinical psychologist, Mr Colby Pearce, in his letter dated 18 September 2024 suggests that a sense of some financial agency may assist the applicant to recover from his history of trauma and abuse. In this respect the varied order may go some way to achieving that aim regarding the limited funds earnt from any employment, whilst at the same time protecting the significant remainder of the applicant's finances.

1. Accordingly, I do not consider that an arguable case has been raised, there is no principle of law that is deserving of permission being granted, and I find that there is simply no merit in this application for internal review.
2. It is important that I make these final comments because the subject order will be reviewed again in 12 months' time. There is also the potential that the applicant will file an application seeking to vary or revoke the orders in the ordinary jurisdiction based on the same arguments that have been put forward in this internal review.
3. For the avoidance of doubt, I do not grant permission for the protected person to seek an internal review in this matter because it is clear that the finding of mental incapacity was the correct finding and there was no evidence at first instance (and there is no new evidence on internal review) to show that the applicant can manage his finances merely with informal supports via his NDIS support agency.
4. The application for internal review will be dismissed.

[3] Dr Jules Begg 10 May 2023, Dr Jessica Lowe 10 January 2024, Ms K de Zeeuw functional capacity assessment dated 2 October 2023 and money management assessment dated 6 April 2024, Dr H Wikramanayake medical report form dated 13 February 2023