DCA v Public Guardian

[2017] NSWCATAD 364

NCAT Administrative and Equal Opportunity|2017-08-10

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NCAT Administrative and Equal Opportunity

Decision date

2017-08-10

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Judgment (32 paragraphs)

[1]

What are these proceedings about?

In these proceedings DCA seeks a review of a decision of the Public Guardian concerning his son, who I will refer to in these Reasons as BA. BA is 20 years of age. He is reported to have a diagnosis of autism spectrum disorder and intellectual disability and a history of epilepsy. The Public Guardian is BA's appointed guardian, by operation of a guardianship order made on 2 December 2016.
The decision under review is the Public Guardian's decision, taken following an internal review, to uphold its earlier decision to select a particular service provider to provide BA with daily support and structured activities.

[2]

Background

On 3 December 2015 the Guardianship Division of the Tribunal made a continuing limited guardianship order for BA, under which the Public Guardian was appointed as his guardian for 12 months. That order was renewed and varied on 2 December 2016, when the Public Guardian was appointed as BA's guardian for 3 years with extensive decision-making functions. These included the authority to make services decisions on his behalf.
It appears to be uncontested that there has been ongoing conflict between BA's parents, who are estranged, as to which service provider should be used to provide him with appropriate daily support and structured activities, particularly upon his transition from school to adult disability services. This conflict continues. BA's father DCA supports the continuation of BA's daily attendance at the facility operated by a service provider known as Giant Steps, located in inner western Sydney. BA's mother, who I shall refer to in these reasons as DEX, prefers the facilities operated by a service provider known as Creativity, Inc, located in south-eastern Sydney.

[5]

Uncontested facts

The following relevant facts appear to be uncontested. 1. On 3 December 2015 the Guardianship Division of the Tribunal made a continuing limited guardianship order for BA, under which the Public Guardian was appointed as his guardian for 12 months. That order was renewed and varied on 2 December 2016, when the Public Guardian was again appointed as guardian for 3 years. The Public Guardian was given authority to make decisions about the following matters on BA's behalf: 1. the access which he had to others and the conditions of that access; 2. his accommodation; that is, decisions as to where BA may reside; 3. health care; that is to decide what health care BA may receive; 4. medical and dental consent; that is to make substitute decisions about BA's minor or major medical or dental treatment where he is not Capable of giving a valid consent; and 5. services; that is authority to make decisions about services to be provided to BA. 1. It is the services function which is central to the real issues in these proceedings. 2. DEX and DCA are estranged. DEX lives with her parents in the Eastern suburbs of Sydney. DCA lives in the former matrimonial home, which is in the adjoining suburb. 3. BA spends approximately equal time with each of his parents. He is close to each of them and to his sister, who apparently has similar disabilities. 4. The relationship between DEX and DCA is such that they find it difficult to be in each other's presence, to discuss options in a productive manner, to seek areas of compromise or to reach joint decisions. This discord extends to decisions about BA's Care and the services he needs. 5. In particular DEX and DCA are in dispute as to which service provider should be used to provide BA with daily support and structured activities. 6. DCA is of the view that BA's interests are best served by his attendance at a facility operated by Giant Steps. 7. DEX is of the view that BA's interests are best served by his attendance at a facility operated by Creativity, Inc. 8. BA attended Creativity Inc on a trial basis commencing in April 2016, he continued to attend that facility following the Public Guardian's original decision on 21 December 2016. As at the hearing date he continued to attend that facility.

[7]

Statutory provisions

Section 80A of the Guardianship Act 1987 makes specific provision for the administrative review by this Tribunal, of decisions by the Public Guardian. The section is in the following terms: "80A Administrative review by the Civil and Administrative Tribunal of guardianship decisions of Public Guardian 1. An application may be made to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: 1. is made in connection with the exercise of the Public Guardian's functions under this Act as guardian, and 2. is of a class of decision prescribed by the regulations for the purposes of this section. 1. An application under this section may be made by: 1. the person to whom the decision relates, or 2. the spouse of the person, or 3. the person who has the care of the person to whom the decision relates, or 4. any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision."
Clause 17 of the Guardianship Regulation 2010 provides that for the purpose of s 80A (1) (b) of the Guardianship Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under that Act as guardian are prescribed.
I am satisfied that DCA had standing to make his application either as the carer for BA, within the meaning of s 80(2) (c) and as a person whose interests are adversely affected by the reviewable decision, within the meaning of s 80 (2) (d).
Sub-section 63 (1) of the Administrative Decisions Review Act 1997 ("the ADR Act") sets out the role of the Tribunal in determining an application for administrative review under that Act. That role is: "… to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law."
Subsection (2) of section 63 provides that for the purpose of making my decision I may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
The effect of these two subsections is often described as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. As is the way with these general "tags", that is not entirely accurate. I am required to decide what the correct and preferable decision is having regard to the material that is before me at the hearing. That may of course include material which was not available at the time of the making of the decision. My decision must be made "as things stand" at the hearing, not as they stood when the administrator made his or her or its determination. It is clear that I may take into account material that was not before the primary decision-maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
The Public Guardian exercises functions under the Guardianship Act 1987. Section 4 of that Act sets out general principles which must be complied with. The section is in the following terms: "It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles."
It is uncontested and accepted by the Public Guardian that in making the original decision and the decision under review it was under a duty to comply with section 4 by observing each of these principles.

[9]

Written material and submissions presented

Each of DCA and the Public Guardian lodged documentation with the Registry prior to the hearing. In compliance with my obligation under s 38 (4) of the CAT Act to act with as little formality as the circumstances of the case permit, I dispensed with the formal admission of any of that material into evidence, but I took account of each item lodged.
The documentation lodged by DCA was as follows. 1. the form of application, annexing "Appendix A- Grounds for Appeal" and "appendix B" which consisted of copies of email correspondence; 2. a bundle of documents headed "Additional Supporting Documents", which comprised a statutory declaration made by DCA on 21 July 2017 (marked as document "A") and 18 other documents which comprised copies of email correspondence, the Public Guardian's review of the original decision, NDIS participant transport fact sheet, 3 statutory declarations respectively by family members, 3 character references for DCA, 3 items of correspondence from Giant Steps, copy of an article on GS Community College and the copies of email correspondence dated 23/09/2016, 12/10/2016 and 20/7/2017. 3. An envelope containing a USB stick apparently included a link to a video. In the time allowed for the hearing I decided not to view that video. There was no objection to this course of action.
The documentation, apart from short standard correspondence, lodged by the Public Guardian was as follows: 1. a Notice of representation, received on 20 June 2017; 2. a bundle of documents filed pursuant to section 58 of the ADR Act, received on 22 June 2017, comprising 20 numbered documents; 3. a supplementary bundle of documents apparently filed pursuant to section 58, received on 4 August 2017, comprising an email of 14 July 2017 and a file note from Ms Plater of the Crown Solicitor's Office of the same date; 4. a large bundle of documents received on the day before the hearing, comprising a brief report to the solicitor representing the Public Guardian at the Crown Solicitor's Office and numerous "shift reports" concerning BA's daily activities, apparently measured against set guidelines, that section of the bundle comprising no less than 906 pages; and 5. a chronology prepared by the Public Guardian, handed up at the hearing.
DEX had lodged with the Registry by email on the morning of the hearing an application to be joined as a party. She did not lodge any other documentation.
Each of the parties made oral submissions at the hearing.

[22]

… Reasoning 1. On 2 December 2016 the Public Guardian (PG) was appointed (BA)'s decision-maker with the services function by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). This means the PG has the authority to make a decision relating to (BA)'s attendance at a specific day program (sic). 2. At this hearing the Presiding Member mentioned the conflict between (BA)'s parents: "The conflict between (BA)'s parents satisfies me that without the order continuing decisions could be made which are not in the best interests of (BA) and which could adversely impact on this existing family relationship." 3. The decision-maker is a Principal Guardian who has the delegation to make a decision of this kind. I note (BA)'s parents were both involved in the transition process and the current objections from (DCA) arose well into the transition period. This may explain why our letter communicating the reasons for the decision has not been prepared. In lieu of this I have outlined the reasons for the decision below. 4. The decision is a choice between two service providers to provide daily support and structured activities for (BA) - Creativity Inc or Giant Steps. Both services offer a program (sic) to meet (BA)'s needs and they are accessible to where he resides. The reasons for this decision relate to the transport arrangements and the impact the arrangements could have on (BA)'s parent's (sic) relationship and therefore (BA). 5. Giant Steps, where (BA) had previously attended school, offered continuity and familiarity. It did not however offer transport and is dependent on an informal transport arrangement possibly requiring negotiation and coordination between his parents. 6. Creativity provides transport and therefore eliminates this risk. It must also be pointed out (BA)'s sister (name removed) attends Creativity Inc and will be travelling with him in the mornings and afternoons. Their holidays are also synchronised. Close monitoring of (BA)'s transition to Creativity Inc demonstrates (BA) enjoys the new environment. 7. Taken together these points all align with principles of the Guardianship Act 1987 namely preserving cultural, family and linguistic environments."

[23]

The "landscape document"

Although the Public Guardian's document headed "Review of Decision" attached to its letter to DCA dated 28 April 2017 was the principal source of reasons for the Public Guardian's decision under review, Ms Neville, Counsel for the Public Guardian urged me to take into account the document headed "Decision", which is printed in landscape format and is set out at pages 50 to 57 of the bundle comprising the section 58 documents. For convenience of reference that document was referred to at the hearing as "the landscape document" and I will use that term here.
Ms Neville confirmed that the Public Guardian relied upon the landscape document as representing the "thought process" of the decision-maker and reflecting the internal review process undertaken by the Public Guardian. I noted that under the heading on page 1 the following words appear: "Date of review: 28/04/2017 Review made by: Anna Gauci"
At first glance this appears to be inconsistent with the "Review of Decision" document which identifies Mr Theo Hastings, Assistant Public Guardian, Operations as the person who carried out the review of the original decision and I noted that it was Mr Hastings who was the author of the letter to DCA dated 28 April 2017 which advised DCA of the decision under review.
Having obtained instructions, Ms Neville explained that: 1. at the time of the original decision that is 21 December 2016, the two Principal Guardians responsible for the matter had prepared the bulk of the landscape document: as I understand it, everything from the heading: "Decision Date: 21/12/2016" appearing on the first page (page 50 of the document bundle). 2. Then, following the completion of the review of the original decision the wording at the top of page 1 commencing with the heading "This Decision has been Reviewed. Date of Review: 28/04/2017. Review made by: Anna Gauci" had been added. 3. Ms Gauci was the responsible Liaison Officer for the matter, but the decision under review was formally made by Mr Hastings as Assistant Director, Operations and Mr Hastings was the principal author of the "Review of Decision" document and the signatory of the letter of 28 April 2017 which advised DCA of the decision under review.
Mr Hastings was present at the hearing and, through Counsel, confirmed that this was the case.
On that basis I was satisfied that although the landscape document had been prepared at the time of the original decision, it was effectively adopted by the decision reviewer Mr Hastings in the course of making the decision under review and on that basis it is appropriate that I take it into account the in conjunction with the document headed "Review of Decision", as extracted at [30] above, in considering how the decision under review was arrived at.
I make further comments on the contents of the landscape document in the section headed "Analysis and determination" below.

[24]

Transport and preserving BA's family relationships

Ms Neville also noted that for some time DCA had proposed that BA attend both Creativity Inc and Giant Steps. Consideration of that proposal gave rise to the connected and significant issue of transport; that is, how BA would be transported to and from each of those facilities and from his home. I understood the Public Guardian's position to be that at the time of the decision under review no workable solution had been found to this issue. Ms Neville confirmed that Creativity Inc provided its own transport to its clients, whereas Giant Steps did not. This was assessed by the Public Guardian to be a significant factor favouring the appointment of Creativity Inc.
Ms Neville conceded that the facilities of each of Giant Steps and Creativity Inc were approximately 14 kilometres from BA's place of residence in the Eastern Suburbs. However in her submission, transport remained a substantial issue because it gave rise to the necessity for liaison and co-operation between BA's estranged parents.
Ms Neville contended that conflict between BA's parents had been an ongoing source of concern to the Public Guardian, principally because of its effect on BA himself and its effect on his family relationships overall. She confirmed that the Public Guardian could not be satisfied that alternate transport arrangements, apparently involving BA's paternal grandparents (whom she understood to be aged 79 and 83 years), were practicable. Additionally, there remained doubt as to whether the National Disability Insurance Scheme ("NDIS") would cover BA's transport costs. Ms Neville confirmed that the Federal Court's determination of this issue in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017, Mortimer J) was subject to an appeal which had not yet been heard by the Full Court of the Federal Court. It appears that that remains the case as at the date of these Reasons.
I understood Ms Neville to rely on the section 58 documentation, particularly the Review of Decision and the landscape document in submitting that I should affirm the decision under review.

[26]

Authority on the application of the section 4 principles

In the matter of WL v NSW Trustee and Guardian [2011] NSWADTAP 22, the Administrative Decisions Tribunal Appeal Panel, with Deputy President Magistrate Hennessy as presiding member, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act. The Tribunal observed, at [71], as follows: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles"
The Deputy President went on, at [72], to draw an analogy between section 4 and the "principles clause" in s4 (2) (a) of the Children (Detention Centres) Act 1987 ("the CDC Act"). The analysis by Deputy President Hennessy in WL v NSW Trustee and Guardian was cited with approval in a recent consideration of section 4 by the Appeal Panel of this Tribunal in ZDU v ZDV [2017] NSWCATAP 197, where the presiding member was Deputy President Schyvens, the Divisional Head of the Guardianship Division.
Four important aspects of the operation of the section 4 principles emerge from WL v NSW Trustee and Guardian and the leading Supreme Court case of P v NSW Trustee and Guardian [2015] NSW SC579.
Firstly, in the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4.
Secondly, in the same case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where a discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker's paramount consideration. See the further discussion under the next sub-heading.
Thirdly, in the WL Case at [75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and at the decision-maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. I would add the gloss in relation to s4 (a) that the wording of that particular paragraph compels the decision maker to give regard to the welfare and interests of the subject person and demonstrate their compliance with that requirement by referring to paragraph (a) expressly or by providing reasons for decision which demonstrate clearly that that paramount principle has been observed. To put it another way, paragraph (a) is always "relevant".
Fourthly in P v NSW Trustee and Guardian [2015] NSWSC 579 at [56] Justice Lindsay, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that: "… the Guardianship Act should be construed beneficially, having regard to its protective character.

[29]

The "landscape document"

I have discussed the "landscape document" at [31] to [36] above and at [36] expressed my satisfaction that although the document had been prepared earlier it was effectively adopted by the decision review in the course of making the decision under review. For that reason it is proper that I should consider whether the "landscape document" alters my conclusion that the stated reasons do not demonstrate that the welfare and interests of BA were given paramount consideration.
The "landscape document" is a thorough one and that it certainly makes mention of the welfare and interests of BA and indeed heading (a) on page 51 of the section 58 documents is in the following terms: "(a) Welfare and interests of the client are of paramount importance".
It is also true that some of the text under that heading, particularly in the second paragraph on page 52 of the section 58 bundle, addresses the "welfare and interests" factor. The top paragraph at page reads as follows: "The Public Guardian considered that this decision promotes (BA)'s welfare and interests. Attending Creativity Inc offers (BA) a new learning experience, an opportunity to develop socially and to interact with his peers. It is a manageable arrangement given the conflict held between his parents."
There follow two pages of detailed discussion which concludes with the following: "The Public Guardian gave weight to the majority views that were evidenced by reports received regarding (BA)'s positive response to Creativity Inc. There were no reports of any detrimental impacts on (BA) by attending a new service. Therefore the Public Guardian considered that the decision to continue at Creativity Inc was not at odds with (BA)'s best interests or welfare." (Emphasis added).
However I have reached the conclusion that when the "landscape document" is read as a whole and notwithstanding the sections cited at [60] and [61] above, the document does not demonstrate that the welfare and interests of BA were given paramount consideration in reaching the decision under review. I reached that conclusion for the following reasons: 1. The conclusion reached in the section cited at [61] applies the wrong approach in concluding that a particular decision (that BA should attend Creativity Inc) is "not at odds" with his welfare and interests. Section 4(a) of the Guardianship Act requires more than that. A particular decision may well be "not at odds" with the subject person's welfare and interests and yet not be the one which should be reached if paramount consideration is given to the person's welfare and interests. Quite simply, that is because there may be more than one decision (or conclusion or solution) which is consistent with the person's welfare and interests and one decision may more fully reflect or promote the person's welfare or interests than do others. 2. On my reading the "landscape document" as a whole there is relatively little consideration of the benefits to BA of the day programme operated at Giant Steps and certainly substantially more consideration of the benefits offered by Creativity Inc. In short, the comparison exercise necessary where there is more than one possible solution which may promote the welfare and interests of the person has not been carried out thoroughly. 3. On a proper reading of the whole of the "landscape document" in conjunction with the later document of 28 April 2017; that is the Public Guardian's stated reasons for the decision under review, the welfare and interests of BA have not been given paramount consideration in reaching the decision under review. The welfare and interests of BA is not demonstrated to have been the consideration which was given the greatest importance and significance. The factors which do appear to have been given the greatest importance and significance emerge from the "summary of reasons" which I have cited at [30] (2), namely: "The decision for appropriate service provider for (BA) hinged on transport arrangements." 1. In fairness, the transport arrangements were related back to the importance of preserving BA's family relationships (the s4 (e) factor). But his welfare and interests were not given paramount consideration.

[30]

What is the correct and preferable decision?

My conclusion that BA's welfare and interests were not given paramount consideration does of course leave open the possibility that the decision that BA should attend Creativity Inc may nevertheless have been the preferable one as at the day of hearing.
As I observed at [16], I am required to decide what the correct and preferable decision is having regard to the material that is before me at the hearing. That may of course include material which was not available at the time of the making of the decision and it is clear from Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 that I may take into account material that was not before the primary decision-maker. My decision must be made "as things stand" at the hearing, not as they stood when the administrator made his or her or its determination.
So, at least in determining the preferable decision, I can take into account such matters as indications that BA has settled in to Creativity Inc and that that facility is of benefit to him.
In that regard, there is some indication in the "daily shift reports" contained in the very large bundle filed by the Public Guardian the day before the hearing that BA appears to be enjoying some of the activities at Creativity Inc. He appears to be happy, to have a good appetite indicated by his laughter and on occasions to make eye contact when he is speaking to staff. But, significantly, it would appear that there are also days when he is quieter.
However I must note that at the hearing I was not referred to any particular part of the 906 page document which consists mainly of those "daily shift reports". Although I take the existence of those reports into account I give them far less weight than I otherwise might have if they had been made available to the Tribunal and of course to the Applicant DCA at an earlier stage and if I had been pointed to particular parts of the very voluminous document at the hearing and the other parties had had the opportunity to consider those extracts. As I say, that was not the case.
Ultimately the decision which I am to make must be both the "preferable" and "correct" one.
Given that I also must comply with section 4 of the Guardianship Act, I retain some discomfort about concluding that my decision can be both the preferable and correct one, albeit at the day of the hearing, if it is based on a decision of the Public Guardian which I have found to have been made otherwise than in full compliance with that section.
I have come to the conclusion that the correct and preferable decision is one which must take into account each of the following: 1. BA's experiences at Creativity Inc (up to the time of the hearing), including particularly the extent to which his welfare and interests might be served by his continuing to use that facility; 2. any possible or likely advantages (in terms of BA's overall welfare and interests) in his continuing to use the services of Giant Steps, including GS College. In my view appropriate allowance must be given to this factor because of the weight devoted in the Public Guardian's reasons for decision (both the stated reasons and the "landscape document") to analysis the advantages of Creativity Inc and the lesser attention which appears to have been given to the possible advantages of Giant Steps; and 3. the possibility, raised by the Applicant DCA but not fully explored at the hearing or in the Public Guardian's reasons, that BA's welfare and interests might be served by his attending both facilities.
I am unable to reach a conclusion as to the correct and preferable decision at the date of the hearing because there was insufficient material available to me, or at least (in relation to the 906-page document) available in a form to which I was prepared to give substantial weight (see [67]), in relation to each of the factors set out in the preceding paragraph.
In those circumstances my orders must reflect the course of action which best protects and preserves BA's welfare and interests.
That course of action is for the decision under review to be remitted to the Public Guardian under s65 (1) of the ADR Act for reconsideration, in accordance with the recommendations I have made below.

[32]

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: 12 December 2017

DCA v Public Guardian

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