James v Department of Family and Community Services

James v Department of Family and Community Services - [2017] NSWCATAD 146 - NSWCATAD 2017 case summary — Zoe

[4]

Background

The Tribunal sets out the background as stated in the Acting President's report. Mr Colin James is a 66-year-old man who lives with his younger brothers, Neil 63 and Gary 62, in a home in Ballina, New South Wales. They receive 24 hour a day care provided by a non-government organisation with funding support from FACS. The three brothers are under the guardianship of their Melbourne-based maternal aunt and uncle. They receive continuous support from Ms Dona Graham of CAREfusion as their advocate.
The three men have a genetic disorder, Phenylketonuria (PKU), which causes severe intellectual disabilities. As result of their condition, all three men demonstrate progressive impairment of cerebral function and other irreversible effects.
In June 2010, a decision was made by the then Department of Ageing, Disability and Home Care (ADHC) to cancel Mr Colin James' application for supported accommodation funding, following the death of his mother, on the basis that his two brothers had each been approved for an in-home individual accommodation support package (IASP).
After years of repeated funding support applications and assessments of the three brothers, in March 2016, FACS offered Mr Colin James an IASP valued at $63,631. This grant was limited to the next 12 months. After this time, he would no longer receive funding. Mr James' guardian sought a formal review of that funding offer for Mr James on the grounds that it was considered inadequate. The outcome of that review was the final IASP offer of $33,453. This represented a reduction of $30,178. This latter amount of $30,178 was to be split between Mr James' two brothers to increase their individual IASP of $153,176 each.
Mr James' complaint was that he had been discriminated against by FACS on the grounds of his brothers' disabilities and on the grounds of his age, in assessing his support and care needs and in the level of funding provided to him in relation to an independent accommodation support package (IASP).

[8]

Complaint of discrimination on the grounds of Mr Colin James' brothers' disabilities

The Respondent said that the ADB did not have jurisdiction to deal with a complaint about the adequacy of financial assistance. The Disability Inclusion Act 2014 states that the Respondent's decisions regarding the provision of financial assistance to eligible persons are not the subject of review by the ADB or NCAT.
The Respondent disputed the claim that the financial assistance provided was inadequate.
The Respondent stated that it had not treated Mr Colin James any less favourably than it treats other people in similar circumstances. It had applied the same legislative framework, policy and procedures in making the decision about Mr Colin James, as it does for other clients with similar disabilities. There are many factors to be taken into account in making a decision regarding the amount of financial support for a person with a disability. This depends on each client's individualised support plan. The Respondent engaged an independent expert from Assessments Australia to assess Mr Colin James' support needs. Economies of scale were built into the weekly schedules as the men live in a shared home, without limiting the requirement to take into account the men's individual needs. This resulted in the total funding package of $33,453 being allocated to the Complainant, in addition to the active ageing funding he receives annually from the ADHC section of FACS, an amount of $16,818.
The Respondent did not base its decision regarding the amount of financial assistance to the Complainant on the disabilities of his brothers. The Complainant's attempt to equate the consideration of support already available in the same residence with the consideration of Mr James' brothers' disabilities was misleading. The Respondent stated that it provided Colin James with financial support in accordance with the independent expert's recommendations. It was an abuse of the ADB's processes to challenge the Respondent's decision.
The legislative schemes under the Disability Inclusion Act 2014 and the National Disability Insurance Scheme do not envisage that every person with the same type of disability would be entitled to receive exactly the same amount of funding. It is determined on the basis of a combination of variables relevant to each individual. The Complainant's arguments about the inadequacy of funding were flawed. The Respondent stated that the Respondent treated Mr Colin James more favourably than other people who do not have such a disability by providing him with financial assistance which is currently $50,271 per annum.
The Complainant's brothers receive higher amounts of financial assistance because they suffer a much higher level of disability. Mr James' brothers have high support needs. Mr Colin James is capable of carrying out a number of day-to-day tasks including operating basic machines, using a telephone, cooking, socialising and driving a car a considerable distance to visit friends.

[11]

Acting President's Reasons for declination

The Acting President's reasons for declination were set out in a letter to the Complainant as follows.

The material provided by the Complainant does not support the allegations of discrimination on the grounds of disability and age in the provision of goods and services.
There is no persuasive information provided by the Complainant to support an inference that he was treated less favourably by the Respondent on the ground of his disability or that he was subjected to a different assessment process to that mandated by the relevant legislation, policies and procedures which the Department is required to follow for all clients. The fact that Mr James' two brothers receive a higher level of funding is not sufficient argument to demonstrate differential treatment in the context of the Anti-Discrimination Act 1977
Whilst eligibility for funding was based upon Mr James' disability, the decision as to the level of financial assistance offered appears to be based on the individual level of need arising from his disability and it is those considerations that determine the amount of financial support offered to him. Although it is uncontested that Mr James' brothers suffer from the same condition and receive a higher level of funding than the Complainant, that in itself is insufficient to demonstrate less favourable treatment on the ground of disability if they receive a higher level of funding because they suffer from a higher level of impairment caused by their disabilities. For that reason, the information provided by the Complainant does not disclose differential treatment and it does not demonstrate a causal link to his disability.
In regard to the allegation of discrimination on the ground of age, there is an insufficient link to ground and no evidence of substantive detriment. The fact that the Respondent took into account that Mr James was at ,or near, 65 years of age and may qualify for a different type of funding does not demonstrate less favourable treatment on the ground of age. It would seem to be a relevant and appropriate consideration for the Respondent, which is a government department allocating public funds, to take into account which pool of State government funds were most applicable in the Complainant's circumstances and to allow him a 12-month period to explore alternative aged care services.

On 28 November 2016 Mr James requested that the matter be referred to the New South Wales Civil and Administrative Tribunal ("the Tribunal") for a hearing.

[13]

Mr James' submissions at leave hearing

Mr James' submissions at hearing, both written and orally, were consistent with the matters put before the Anti- Discrimination Board.
The Tribunal also notes the following matters raised:
Section 49M1(b) of the Act, makes it unlawful to discriminate on the grounds of disability in the terms on which a person provides a person with services. The Applicant noted that the provision of services is embodied in a direct payment agreement (DPA) in operation between the two parties. The terms of the DPA means that the provision of services and the funding required to purchase those services are inextricably linked and cannot be severed. The amount of DPA funding allocated by FACS to Mr James is an integral component of services under the terms of the DPA. Therefore, this is a matter within the jurisdiction of the Tribunal to consider separately and in conjunction when reviewing Mr James' claims of direct discrimination on grounds of age and disability in the provision of, or the lack of provision, of adequate services.
The Applicant submitted that the defence of unjustifiable hardship under section 49M, were it to be raised by the Respondent, would be dubious as the amount in dispute was $61,042 per annum. This would clearly not impose unjustifiable hardship on FACS.
The Applicant referred to the matter of BRQ v State of NSW (Department of Family and Community Services) [2015] NSWCATAD 29. In this matter the Tribunal ruled that under section 53 of the Act, conduct for which the service provider is personally or vicariously liable is within the jurisdiction of the Tribunal to review.
The Applicant submitted that in her decision to decline the complaint to the ADB, the Acting President only considered whether discrimination on the grounds of the Applicant's disability occurred. The Acting President did not fully consider the question of whether discrimination on the grounds of Mr Colin James' brothers' disabilities occurred.
To determine the appropriate comparator, the Applicant referred to the High Court's findings in Purvis v New South Wales (2003) 217 CLR 92.
This meant that to be successful, the Applicant must first identify the circumstances attending the treatment given to him and then examine what would have been done in those circumstances if the person concerned was not a relative of a person with a disability. The circumstances of the treatment of the Applicant was the FACS decision making process, which leads to the determination of his IASP. The Applicant claimed that in determination of his IASP, there was a comparison made between the level of disability of his brothers and his level of disability. As a result of that comparison, he was treated less favourably than he would have been, had FACS not compared him with his brothers.
The appropriate comparator in circumstances which were not materially different was to compare the way in which Mr Colin James had been treated living with brothers who had a disability, in comparison to someone who lived with others who had disabilities, who were not the Applicant's brothers.
It is not the amount of funding that is the unfavourable treatment. The Applicant was not seeking review of the amount of funding. It was the process in determining the amount of funding to be given to the Applicant that was the problem. What should have been considered is what the Applicant's needs were. The Applicant should be considered completely independently of his brothers. He was to have been considered not as a person with a lower level of PKU than his disabled brothers, but as a person whose needs are entirely independent of his brothers. It was not appropriate to use a comparison of higher and lower level of disability between the brothers.
The Applicant stated that there were two possible arguments that can be made in support of the Applicant's case.
One is that he had been discriminated against on the grounds that his brothers have a higher level of disability than he has. Had he not had brothers with disabilities, he would have been treated more favourably.
The other argument is that he has been discriminated against on the grounds that he is the relative of brothers with a disability. Had he not been their relative Mr James would have been treated more favourably.
In support of this construction, the Applicant noted that in 2010 the Applicant's application had been cancelled because his two brothers had been approved for supported accommodation. In 2012, he was unsuccessful because his brothers already had a funding package. In 2016, the Applicant's suitability and eligibility had been calculated through what his brothers had received. The Applicant considered that the mode of assessing his entitlement and the amount of his entitlement were flawed.
For Colin James to be treated lawfully under the ADA, he needed to be independently assessed without consideration of the needs of his brothers who have disabilities. The process had failed to identify Mr Colin James' independent and separate needs. The independent assessment done by the independent person assessed Mr James' needs as far higher than the Respondent had subsequently funded him.
The Applicant was not saying that one should hypothetically imagine Mr James living on his own. Mr James did say that the assessment and financing should consider that the three brothers lived together. Gary and Neal James are both receiving one-on-one assistance. If Mr Colin James had been considered separately to his brothers, he would have been considered eligible to receive one-on-one assistance. Saying that the Respondent was applying economies of scale was too simplistic.
Colin James could be considered as a person who lives in a group home. However, his assessment and financing of his needs should not be determined by the needs of other specific people.
This was not an attempt to circumvent the review process set out under the Disability Inclusion Act 2014. The issue was none of the matters listed in the Disability Inclusion Act 2014.
This was not a matter concerned with reviewing the amount of funding. It was the process that was a matter of concern.

[24]

What constitutes discrimination on the ground of disability?

The tribunal sets out relevant sections with the tribunal's bolding. 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

[25]

Provisions relating to Discrimination on the ground of Age 49ZYA What constitutes discrimination on the ground of age (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if the perpetrator: (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. 49ZYN Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age: (a) by refusing to provide the other person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. (2) Nothing in subsection (1) applies to or in respect of: (a) benefits, including concessions, provided in good faith to a person by reason of his or her age, or (b) holiday tours offered or provided to persons who are of a particular age or age group. (3) Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will. 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services. 54 Acts done under statutory authority (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or Tribunal having power to fix minimum wages and other terms and conditions of employment, or……….

[29]

Comparator

Mr James submitted that he had been treated less favourably than he would have been if he had not been assessed with the needs of his brothers in mind. The appropriate comparison could be to compare Mr Colin James' situation with someone who required assessment and funding who did not have brothers with disabilities. Another appropriate comparator in circumstances which were not materially different was to compare the way in which Mr Colin James had been treated, living with brothers who had a disability, in comparison to someone who lived with others who had disabilities who were not the Applicant's brothers. An example of this comparator in circumstances which were not materially different, might be a person who lived in a group household with others who had disabilities, to whom the Applicant was not related.
The Respondent's initial response did not deal with a complaint made on the basis of the disability of Mr James' brothers. Nor did the Acting President of the ADB.
At the hearing, the Respondent noted that there is a difference between a person who has a brother and a person who chooses to live with their brother. The Applicant was asking the Department to disregard the fact that other people with disabilities do not live together. There was inconsistency in the Applicant's case. The Applicant was asking the Tribunal to imagine that the Applicant was not living with his brothers and then assess him and provide him with an amount of money. The Applicant had been applying for additional in home cleaning. The Respondent was applying economies of scale to the situation. The Tribunal should find that it is part of the actual circumstances that the three brothers are living together.
The Tribunal was satisfied that where the complaint was one of less favourable treatment on the grounds of the disability of a relative, that is the disabilities of Mr James' two brothers, that a potential comparator in circumstances which were not materially different was someone who required assessment and funding who lived with others with disabilities to whom the Applicant was not related.

[34]

Fair and Just in the particular circumstances

The Tribunal returns to the principles set out in Ekermawi for determining whether leave should be granted in which Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates.
The Respondent argued that it is not fair and just for the Complainant to be allowed leave, as the complaint to the ADB is a mode of circumventing the process set out under the Disability Inclusion Act 2014. The Applicant argued that the provisions of the Disability Inclusion Act 2014 do not deal with the Applicant's complaint about the process for assessing his funding. In passing, the Tribunal also notes that the Respondent did not argue that the Complainant was precluded by section 54 of the Anti-Discrimination Act 1977 from bringing the complaint.
The Tribunal should proceed cautiously by reading the Complainant's case at its highest. In this respect, the parties do not differ significantly in relation to the factual circumstances alleged. The Complainant has put forward a case addressing the elements of a disability and an age discrimination complaint. Ultimately it is for the Tribunal to determine whether these factual circumstances meet the requirements of the legislation.
The Tribunal must be satisfied that it is fair and just in all the circumstances for Mr James' complaint to proceed. It appears that the Acting President may not have considered that the basis of the Applicant's complaint was that he had been discriminated against on the ground of his brothers' disabilities. The Respondent contests the appropriate comparator for this complaint. Such issues should be determined by the Tribunal at full hearing. In the circumstances, the Tribunal is satisfied that it is fair and just for Mr James' complaint against the Respondent of disability and age discrimination in the provision of goods and services to proceed.

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Cited By (1)