The person under guardianship, who I will refer to in these reasons as "the son", is a man in his early 20s who has autism and a severe intellectual disability. The respondent, the Public Guardian, has been appointed as his guardian in respect of certain functions.
In these proceedings the applicant, known as DMO, who is the son's mother, seeks an administrative review pursuant to s 80A of the Guardianship Act 1987 (NSW) (Guardianship Act) of the decision made on 18 January 2019 by the respondent in connection with the exercise of the Public Guardian's functions as the guardian of her son (18 January 2019 decision).
For the reasons set out below, I have dismissed these proceedings pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) because the applicant does not have standing to apply for an administrative review of the 18 January 2019 decision.
[2]
Non-publication of names
Pursuant to s 65(1)(b) and (2) of the NCAT Act, there is a prohibition against publishing the names of certain persons, if the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CSCRM Act). Those persons are a witness in proceedings, a person to whom any proceedings in the Tribunal relate, or a person who is mentioned or otherwise involved in the proceedings.
The term "community welfare legislation" includes the Guardianship Act: see CSCRM Act, s 4(1). These proceedings are for a decision for the purposes of the Guardianship Act.
Whilst the prohibition in s 65 does not apply to an official report of the proceedings (see s 65(3)), I have avoided referring to some persons by name in these reasons. Instead, I have referred to the person under guardianship, and the applicant by reference to their relationships to each other, so as to preserve their anonymity.
[3]
Background
On 27 September 2013 and 28 October 2013, the then Guardianship Tribunal made temporary orders, and then on 13 January 2014, made an order appointing the respondent as the guardian for the son.
On 16 January 2017, the Tribunal made an order continuing the appointment of the respondent as the guardian for the son for 3 years.
On 13 February 2018, the Tribunal, upon reviewing the guardianship order for the son made on 16 January 2017, made an order continuing the appointment of the respondent as the guardian for the son for 3 years from 16 January 2017 with the functions of access; accommodation; health care; medical/dental consent and services.
The son currently resides in a group home in Green Point, which is a Life Without Barriers (LWB) supported home.
On 17 January 2019, the applicant emailed Ms Katherine King, the son's assigned guardian at the Office of the Public Guardian, seeking her permission to view with her son an alternative supported independent living (SIL) accommodation on 18 January 2019. In her email the applicant states that 3 documents (being Customer Engage; Intake Matching Form; and Personal Details) would need to be completed before the visit could occur. The applicant offered to complete these documents, with the respondent's permission, in the absence of a Coordinator of Supports being available to do so.
On 17 January 2019, the assigned guardian acknowledged receipt of the request and asked the applicant to forward all the forms to be completed to the LWB manager. On the same day, the applicant requested reasons for this decision.
On 18 January 2019, the assigned guardian in her email to the applicant provided reasons for the 18 January 2019 decision. The assigned guardian states in the decision that LWB had agreed to fill in the intake forms and that the respondent considers this appropriate when the Coordinator of Supports is not able to complete a referral for a SIL. In summary, the following reasons are given:
1. the respondent consents to the release and exchange of the son's personal information by formal disability service providers and other health professionals for the purpose of establishing the son's eligibility and compatibility for alternative SIL;
2. the applicant and Mr X's father do not provide SIL to their son. If the son's parents are the source of information for any SIL application there is a risk to the son that the information may be inconsistent with the information held by his formal SIL provider LWB;
3. as the son's current SIL provider, LWB holds the relevant information required in an intake form for another SIL provider, and therefore is the most appropriate source of the information;
4. the respondent can provide clarification or follow up of any information needed directly with the SIL provider;
5. this procedure will promote a clear understanding of the son's support needs in SIL and the respondent is satisfied it is the correct procedure in the son's needs;
6. there is no objection to the applicant informally visiting the property and the respondent would appreciate her views if she does so; and
7. it would be inappropriate to show the son a property not offered to him.
On 30 January 2019, the applicant emailed the assigned guardian and requested an internal review. The request contained fourteen points in support of the internal review.
On 1 February 2019, the assigned guardian acknowledged receipt of the request for an internal review. However, the applicant was advised that before the matter can proceed to an internal review information in support of the claims relevant to the decision was needed. The assigned guardian addressed each of the fourteen points contained in the applicant's email, and advised the applicant that her son's NDIS plan had been approved which would enable the Coordinator of Supports to make the necessary referrals necessary to bring on board an experienced and independent behaviour practitioner.
On 15 February 2019, the assigned guardian advised the applicant that the respondent had asked Ms Lynn Spalding, the Coordinator of Supports, to follow up on the referral to the proposed alternative SIL provider for her son.
[4]
Procedural history
On 6 February 2019, the applicant filed application 19/42289 against the respondent in which she seeks an administrative review of the 18 January 2019 decision made by the respondent to refuse to give permission to the applicant to:
1. have her son to accompany her to view an alternative SIL residence on 18 January 2019; and
2. to complete intake forms for the SIL;
on the following grounds:
"My son … is currently residing in an unsafe group home with reported abuse and neglect of medication. Verbal agreement between all stakeholders on the 9 January 2019 that the group home is unsuitable for Lawrence and new accommodation to be sourced urgently. On the 17 January 2019, I requested permission from the OPG to view potential accommodation with my son … and complete 3 intake forms. The request was transparent and recognised the OPG as the decision maker. I object to the current accommodation provider submitting forms on (my son's) behalf due to conflict of interest. Despite "pattern of abuse" recognised by the Ombudsman's office I have not been provided with any evidence of new accommodation sourced for my son Lawrence. On the 30 January 2019, I submitted a request for an internal review by the OPG but was denied, I have attached response from the OPG for your review dated, 1 February 2019. Due to my son residing in an domestic violent home environment I request an urgent review of the OPG decision."
Attached to the application were the applicant's first email of 17 January 2019, and the assigned guardian's emails of 18 January 2019 and 1 February 2019.
On 19 March 2019, the Tribunal made orders for the hearing of the proceedings.
On 26 March 2019, the respondent filed an application seeking an order that the proceedings be dismissed pursuant to s 55(1)(b) of the NCAT Act.
[5]
Guardianship Act
Part 7 (which is comprised by ss 77 to 80) of the Guardianship Act is headed "The Public Guardian". Section 80A(1) deals with administrative review by the Tribunal of guardianship decisions of the Public Guardian and relevantly provides:
80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian
(1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that:
is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and
(b) is of a class of decision prescribed by the regulations for the purposes of this section.
(2) An application under this section may be made by:
…
(d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision."
[6]
Guardianship Regulation 2016
Regulation 17 of the Guardianship Regulation 2016 provides that for the purposes 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 the Guardianship Act as a guardian are prescribed.
[7]
ADR Act
Chapter 1 (which is comprised by ss 1 to 6) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) is headed "Preliminary". Section 4(1) contains definitions and relevantly defines "interested person" as "a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision". Section 6(1) relevantly defines "decision" to include "refusing … approval": s 6(1)(b).
Chapter 2 (which is comprised by ss 7 to 9) deals with the administrative review jurisdiction of the Tribunal. Section 7(1) provides that "An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction."
Chapter 3 Part 2 Division 3 (which is comprised by s 53) deals with internal reviews of the decisions of administrators. Section 53 relevantly provides:
1. an "interested person" may apply for an internal review" of "an administratively reviewable decision": s 53(1);
2. an application for an internal review is to be lodged at the office of the administrator within 28 days after the person was provided with a statement of reasons of the decision: s 53(2)(d)(i);
3. in reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant: s 53(4),
4. the review must be completed and the applicant notified within 21 days: s 53(6).
[8]
NCAT Act
Part 4 Division 4 (which is comprised by ss 49 to 55) of the NCAT Act deals with the conduct of proceedings in the Tribunal. Section 55 deals with the dismissal of proceedings and relevantly provides:
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
…
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
[9]
Standing to seek administrative review of decisions of the Public Guardian
The Guardianship Act is remedial or beneficial legislation and should be interpreted so as "to give the fullest relief which the fair meaning of its language will allow". In particular, it should be interpreted so as to facilitate the making of applications for review of the Public Guardian's decisions, if this is allowed by the "fair meaning" of s 80A: BJK v Public Guardian [2015] NSWCATAD 60 at [28].
In BJK v Public Guardian at [31] the Tribunal considered the meaning of "interests" in s 80A of the Guardianship Act:
[31] Consistently with the ways in which the terms "interest" and "interests" are used elsewhere in the Guardianship Act 1987, and with the beneficial and protective nature of the legislation, the word "interests" in s 80A(2)(d) is to be interpreted broadly. It extends to what might be termed personal or psychological interests in a person's welfare. This construction of the provision is consistent with the approach taken by the former Administrative Decisions Tribunal in IO v Public Guardian [2004] NSWADT 111 at [26]-[29]. In that case it was held that a daughter's "interest in preserving and strengthening her relationship with her mother" was adversely affected by a decision to relocate her mother, and that the daughter therefore had standing to make an application for a review of that decision under s 80A(2)(d) of the Guardianship Act 1987.
In BJK v Public Guardian at [32] the Tribunal held that the interests of the uncle of a 20 year old man with Down Syndrome and autism were adversely affected the respondent's new decision that the man was to continue to live with the father. First, the decision meant that he would be unable to see or contact his nephew as frequently as he otherwise would be able to do. This would affect the closeness of his relationship to his nephew and his ability to have input into his nephew's development and welfare. Secondly, given that he perceived his nephew to be inadequately cared for by his father and that he cared deeply for the nephew and his sister, his interests in maintaining and promoting his sister's and nephew's wellbeing were adversely affected by the decision that the son reside with his father.
[10]
Dismissal of proceedings
In Harrington v Corrective Services New South Wales, Department of Justice [2017] NSWCATAD 46 the Tribunal considered the dismissal of proceedings under s 55(1)(b) of the NCAT Act. The Tribunal at [39] held that proceedings are "misconceived" where the underlying facts do not come within the section under review or "lacking in substance" where element of the claim requiring proof is not reasonably arguable or that there is a high degree of certainty that the complaint will not succeed.
[11]
Evidence of the respondent
The respondent relies on the Statements of Theo Hastings (Mr Hastings), Assistant Public Guardian, dated 26 March 2019 and 27 March 2019 which relevantly set out the facts and annex documents which form the background of the 18 January 2019 decision.
[12]
Submissions of the respondent
The respondent in Submissions dated 26 March 2019, after setting out the relevant legislation and the applicable legal principles, advances the following submissions:
1. as to whether the 18 January 2019 decision is reviewable:
1. the decision is a decision for the purpose of s 6 of the ADR Act, as it is a refusal to give approval (see s 6(1)(b));
2. in making the decision, the respondent is exercising a function under the Guardianship Act, which is a prescribed function (cl 17 Guardianship Regulation) and as such is administratively reviewable;
1. as to whether the applicant has standing:
1. there is no evidentiary basis to conclude that the interests of the applicant are adversely affected by the 18 January 2019 decision;
2. as the first limb of the decision of not permitting the applicant to have her son accompany her to view the accommodation, it is not prima facie obvious why the applicant's interests are adversely affected. This is especially so in circumstances where the respondent indicated there was no objection to the applicant informally visiting the property on 18 January 2019 and indicated it would appreciate the applicant's views if she did so;
3. as the second limb of the decision of not permitting the applicant to complete the forms in the absence of a Coordinator of Supports, it is not readily clear why the applicant's interests are adversely affected. The applicant did not in response to the request of the respondent provide facts or other information to support her contention that LWB filling out the intake forms would involve a conflict of interest. On 1 February 2019, the applicant was informed that her son's NDIS plan had been approved and that this would enable the Coordinator of Supports to make the necessary referrals necessary to bring on board an experienced and independent behaviour practitioner;
4. if the Tribunal finds that the applicant does not have standing, then the proceedings should be dismissed on the grounds that they are frivolous or vexatious or otherwise misconceived or lacking in substance;
5. if the Tribunal finds that the applicant does have standing, then the 18 January 2019 decision should be remitted for internal review.
At the hearing the respondent submitted that there was no utility in the proceedings because the 18 January 2019 decision related to past events.
[13]
Evidence of the applicant
The applicant relies on the documents attached to her application and did not give evidence at the hearing.
[14]
Submissions of the applicant
The applicant in a submission received by the Tribunal on 1 April 2019 advances the following submissions:
1. the statement of Mr Hastings should be omitted because by reason of his direct contact with the applicant he has a conflict of interest;
2. she is unable to contest any of the legal arguments presented by the respondent;
3. she was not required to provide further evidence when requesting an internal review.
At the hearing the applicant submitted that her interests are adversely affected by the decision because her son is living in an unhappy environment.
[15]
Is the 18 January 2019 decision reviewable?
I am satisfied that the 18 January 2019 decision is reviewable as it was a decision "refusing … approval" within s 6(1)(b) of the ADR Act of the applicant's request made in her email sent on 17 January 2019 to the son's assigned guardian. This decision, which related to the son's accommodation, was made by the respondent in connection with the exercise of the respondent's functions under the Guardianship Act. Pursuant to reg 17 of the Guardianship Regulation 2016 the decision is within a class of decision for the purposes of s 80A.
[16]
Does the applicant have standing to seek administrative review?
The applicant's interests in maintaining and promoting her son's wellbeing, as held in BJK v Public Guardian, are sufficient to constitute "interests" within s80A of the Guardianship Act. While those interests could be adversely affected by a decision of the respondent in relation to her son's accommodation, I am not satisfied that they were adversely affected by 18 January 2019 decision for the following reasons:
1. as the first limb, the absence of her son at the visit to the property of the proposed alternative SIL provider on 18 January 2019, could not affect her ability to have input into her son's development and welfare. As advised by the assigned guardian on 18 January 2019, there was no objection to the applicant informally visiting the property and the respondent would be appreciative of her views if she did so;
2. as the second limb, the applicant was not prevented from providing any input into the completion of intake forms for the SIL. She was able to provide information to the assigned guardian. She failed to respond to the assigned guardian's invitation to provide details of the alleged conflict of interest of LWB in doing so.
It follows that I am not satisfied that the applicant has standing to seek administrative review of the 18 January 2019 decision.
[17]
Should the Application be dismissed?
As the applicant does not have standing to seek administrative review of the 18 January 2019 decision, the proceedings should be dismissed pursuant to s 55(1)(b) of the NCAT Act because they are misconceived or lacking in substance.
If, contrary to my finding, the applicant does have standing to seek administrative review of the 18 January 2019 decision, then the proceedings should nonetheless be dismissed pursuant to s 55(1)(b) of the NCAT Act because they are misconceived or lacking in substance in that they now lack utility. The applicant's request related to past events, namely a visit to the property of the proposed alternative SIL provider on 18 January 2019, and the absence of funding of the Coordinator of Supports. As is clear from the assigned guardian's emails of 1 and 15 February 2019 to the applicant, Ms Spalding is now funded for her role as the Coordinator of Supports in relation to the applicant's son. In these circumstances, there is the necessary high degree of certainty that the proceedings will not succeed.
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: 18 April 2019