In June 2011, one of NCAT's predecessors, the Guardianship Tribunal of NSW, made a financial management order committing the management of the appellant's estate (assets and income) to the Trustee (the financial management order). The Tribunal exercised the power under s 25E of the Guardianship Act to exclude any payments made by Centrelink to the appellant from that order.
On multiple occasions the Tribunal has reviewed the financial management order made in 2011, in most cases at the request of the appellant. On each occasion, the Tribunal declined to revoke that order. However, on two occasions, the Tribunal decided to vary that order:
1. by making all of the appellant's estate, including her Centrelink benefits, subject to the financial management order (March 2019)
2. by reinstating the exclusion of the appellant's Centrelink benefits from the subject of the financial management order and adding to that exclusion the sum of $100,000 (January 2020).
[2]
Decision Under Appeal
In February 2022, the appellant requested the Tribunal to revoke the financial management order made in 2011, as varied, on the ground that she was now capable of managing her affairs. Following a hearing on 10 August 2022, the Tribunal (Senior Member Organ) confirmed that order. This is the decision under appeal.
In written reasons for that decision (the Reasons), the Tribunal correctly identified at [8] that the power to revoke a financial management order could only be exercised if:
1. it is satisfied that the appellant is capable of managing her affairs; or
2. it considers that it is in the best interests of the appellant that the financial management order be revoked.
The Tribunal went on to consider each issue in turn.
The Tribunal commenced considering the question of whether the appellant is capable of managing her affairs by referring to the statement by Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579 at [308], [309] concerning the proper meaning of the phrase "is capable of managing his or her affairs" in the Guardianship Act:
[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].
At [14], the Tribunal stated that, when it questioned the appellant about her understanding of her "current financial circumstances", the appellant was not able "to provide a clear response and explain what she knew about her income, assets and regular expenses". The Tribunal stated that its attempts to focus the appellant on its questions were "largely unsuccessful" and her responses were "tangential and difficult to follow".
At [15], the Tribunal referred to the appellant's statement that, if the financial management order was revoked, her priority would be to move from her apartment located in a suburb in south-eastern Sydney to "New Zealand, Greece or Queensland". The Tribunal noted at [15], that the appellant was unsure of the current value of her apartment and the likely purchase price of a property in the areas she wished to live.
The Tribunal noted at [15] that the appellant nominated the purchase of a car as a priority if the financial management order was revoked. The appellant stated that she was unhappy with the Trustee's decision to refuse to make funds available to enable her to purchase a car.
At [16], the Tribunal noted that the appellant stated that the weekly allowance she received from the Trustee of $400 was "not enough". When questioned by the Tribunal, the appellant was unable to give a breakdown of how she spent that allowance or to give an estimate of the amount she spent on essentials, such as food and medication. The Tribunal observed at [16] that the appellant brought to the hearing a large bag of receipts, which appeared to relate to expenses she had incurred several years earlier, including a number relating to a property where she had lived with her father.
At [18]-[22], the Tribunal discussed a report prepared by the Trustee for the purpose of the review proceedings and noted:
1. In addition to the weekly allowance of $400 paid to the appellant from funds managed on her behalf by the Trustee, the Trustee paid all expenses associated with the appellant's apartment, such as council and water rates and strata levies;
2. The appellant received a part pension from Centrelink which she estimated to be about $600 to $700 per fortnight;
3. The Trustee estimated the value of the appellant's unit to be $560,000;
4. The Trustee managed about $410,000 on behalf of the appellant, held in various funds.
At [21], the Tribunal summarised "ongoing issues of concern" said by the Trustee to raise questions about the appellant's capacity to manage her financial affairs:
1. The appellant's refusal to accept that she is liable to pay strata fees and her stated belief that the payment of those fees demonstrated the "incompetence" of the Trustee.
2. The appellant's repeated requests for funds to purchase a car in circumstances where the Trustee had explained "many times" that the appellant lacked the funds to pay for the ongoing expenses associated with running a car.
3. The appellant's repeated requests for reimbursement for purchased items in circumstances where the Trustee had repeatedly advised that such purchases must be paid from her allowance or Centrelink benefits.
4. The appellant's apparent rejection of recommendations made by the Trustee's Financial Planning Unit to "extend the life of her funds" so as to "avoid significant financial challenges in the future".
5. The appellant's repeated failure to accede to the Trustee's request to prepare an "action plan" in support of her request to fund the purchase of an alternative place of residence.
6. The appellant's actions in spending $100,000 in three months in 2020 after the Tribunal excluded that amount from the financial management order.
Referring to the response given by the appellant to the latter at [22], the Tribunal stated that that "response … was difficult to follow but she appeared to place blame [on others] for these funds being spent". The Tribunal noted that the appellant conceded that there were no funds remaining from the $100,000 and nor had she purchased any items of value from that money.
At [23], the Tribunal noted that differently constituted Tribunals, in reviewing the 2011 financial management order, "accepted medical evidence that [the appellant] has a psychotic illness that causes her to be incapable of making financial decisions in her interests". The Tribunal observed that it had not been provided with any medical evidence which might support a contrary finding.
At [25] the Tribunal found that there was insufficient evidence to support a finding that the appellant "had regained the capability to manage her financial affairs". The Tribunal considered significant:
1. "There is no medical or other objective evidence that would support a finding that [the appellant] is now capable of managing her financial affairs;
2. [The appellant] has not articulated an effective plan for the future management of her funds;
3. [The appellant] has not demonstrated a capacity to budget so as to ensure that her funds are available for her long-term needs."
The Tribunal went on to consider at [26]-[29] whether it is in the appellant's best interests that the financial management order be revoked.
At [26], the Tribunal noted that, in making that evaluation, it was required by
s 4 of the Guardianship Act to observe the principles that the appellant's "freedom of action and decision making be restricted as little as possible, that she should be encouraged to live as normal a life in the community as possible and should be encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic and financial affairs". The Tribunal noted, however, that s 4 also required that it observe the principle that the appellant "be protected from neglect, abuse and exploitation".
The Tribunal gave these reasons for its conclusion that it was not in the appellant's best interests that the financial management order be revoked:
1. The available evidence indicates that the appellant is a "vulnerable person by reason of her enduring mental illness": at [26].
2. Previous attempts to provide the appellant with a greater degree of financial independence and autonomy resulted in a substantial sum of money being expended, over a short period "without anything to show for it". The Tribunal noted that the $100,000 spent by the appellant in 2020 represented 20% of her assets at that time: [27].
3. While the source of a "high level of dissatisfaction and frustration" to the appellant, the financial management order nonetheless "played an important role in maintaining secure housing for the appellant and in ensuring that her essential expenses are being met": [28].
[3]
Leave to appeal
Neither of the asserted errors identified by the appellant in the decision under appeal - that the decision was against the weight of evidence and that the decision was unfair - identify a "question of law".
Therefore, it is necessary to consider whether, as requested by the appellant, the discretion to give her leave to appeal should be exercised. In considering whether to exercise that discretion, we adopt the restrained approach espoused by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins) at [84], and consistently followed by other Appeal Panels of NCAT and consider whether there is a "sound basis" for granting leave to appeal.
The proposed appeal turns upon two findings which were central to the Tribunal's ultimate decision not to revoke the financial management order (the challenged findings):
1. that the Tribunal was not satisfied that the appellant was capable of managing her affairs, and
2. that it did not consider it to be in the best interests of the appellant to exercise the power to revoke the financial management order.
Dealing first with the assertion that the challenged findings were against the weight of evidence, we note that, as observed by the Tribunal, the appellant provided the Tribunal with little, if any, objective evidence to support her claim that she was now capable of managing her financial affairs. It is apparent from the Reasons that the Tribunal considered significant the appellant's inability to give a cogent explanation for her actions in spending $100,000 in three months and her failure to engage with the concerns raised by the Trustee that unless she modified her current expenditure patterns it was likely that she would face significant financial challenges in the future. There was ample evidence available to the Tribunal to support each challenged finding. The Tribunal referred to that evidence in the Reasons and gave comprehensive, cogent and persuasive reasons for each finding.
Notably, in undertaking the task required by s 25P(2)(b) of evaluating whether the "best interests" of the appellant would be served by revoking the financial management order, the Tribunal acknowledged that it was required to apply the "general principles" in s 4 of the Guardianship Act including those which favoured the revocation of the financial management order: "the freedom of decision and freedom of action of [the appellant] should be restricted as little as possible (para (b)), [the appellant] should be encouraged, as far as possible, to live a normal life in the community (para (c)), "the views of [the appellant] … should be taken into consideration" (para (d)).
There is no evidence to suggest, as the appellant contended, that the decision was unfair. Nor does the appellant allege any procedural unfairness or irregularity. It cannot be said the decision evidences "an injustice which is reasonably clear" or contains "an error that is plain and readily apparent": Collins at 84(c). The Tribunal correctly stated that the power to revoke the financial management order could only be exercised if it was satisfied that the appellant was either capable of managing her affairs or that it did not consider it to be in the best interests of the appellant to exercise the power to revoke the financial management order.
In truth, the contention that the decision was "unfair" is an expression of disagreement with the challenged findings and the ultimate decision reached by the Tribunal.
The appellant has failed to establish that there is a "sound basis" for granting leave to appeal.
Leave to appeal is refused.
[4]
New hearing
The appellant requests that we deal with the appeal by way of a "new hearing". Section 80(3) of the NCAT Act permits the Appeal Panel "to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing" and to "permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances".
Establishing a question of law is not a pre-condition to the exercise of the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing and to take into account fresh evidence: see, Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18]; DHQ v DHR [2018] NSWCATAP 128 at [60]. Nonetheless, where, as here, the proposed appeal does not raise a question of law, there must be a compelling reason to warrant the exercise of that discretion.
The appellant submits that the following evidence she obtained after the hearing by the Tribunal warrants the exercise of the discretion to deal with the appeal by way of a new hearing:
1. A statement issued by Centrelink on 9 January 2023 that the appellant receives each fortnight the disability support pension ($687) together with energy and pensions supplements (approx. $100)
2. A letter dated 15 December 2022, prepared by the appellant's general practitioner, which states:
"[The appellant] expressed the desire to manage her finances and feels that she is capable to do so.
She remains in stable health."
1. A letter, dated 9 January 2023, prepared by a staff psychiatrist employed by the mental health service attended by the appellant. The psychiatrist stated that she reviewed the appellant on 9 January 2023 and found the appellant's "mental health to be stable". In addition, the psychiatrist stated that the appellant receives ongoing treatment under a community treatment order.
2. A letter to the Health Care Complaints Commission, dated 26 August 2022, in which the appellant appears to complain about the history taken by three psychiatrists who apparently assessed her.
3. The appellant's bank statement for the period May to December 2022.
4. The appellant's CV.
5. A series of emails between the appellant and the strata manager of the apartment complex where she resides concerning damage to the door of the appellant's apartment said to have been caused by the forced entry of police and paramedics in January 2022.
6. Various letters apparently written by the appellant, the relevance of which to this appeal is unclear.
[5]
Consideration
We understand the appellant to argue that the material listed above warrants the exercise of the discretion to conduct a new hearing.
Some of that material addresses concerns raised by the Tribunal about the lack of "objective evidence" to support several claims made by the appellant in support of her assertion that she is now capable of managing her financial affairs. For example, bank statements (Item 5), medical evidence (Items 2 and 3), and the Centrelink statement (Item 1).
Nonetheless, this material fails to address the key concerns identified by the Tribunal, namely, that the appellant:
1. has a history of impulsive spending, as demonstrated by her actions in 2020 in spending $100,000 in three months and is unable to account for that expenditure
2. has demonstrated little apparent understanding of how she spends her allowance and Centrelink benefits
3. has demonstrated an inability or unwillingness to understand the impact on her long-term financial security if a car or new place of residence was purchased from her limited assets
4. has consistently failed to meet requests by the Trustee to submit a budget in support of her application for funds to be made available to enable her to purchase a new property.
We add to these concerns the apparent absence of any support available to the appellant to assist her to make decisions about her finances if the financial management order were to be revoked. In addition, we note that in answer to our question that, if the power to vary the current order were to be exercised, what amount would she ask to be excluded from that order, the appellant nominated the sum of "TWO MILLION DOLLARS OR TWO HUNDRED THOUSAND". [1]
In these circumstances, we decided that no useful purpose would be served in exercising the discretion to deal with the appeal by way of a new hearing.
[6]
Endnote
Email sent by appellant to NCAT 19 January 2023 3:48 PM.
[7]
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: 21 February 2023
The power to make and the power to revoke a financial management order are contained in Part 3A (financial management orders) of the Guardianship Act 1987 (NSW).
Contained in Division 1 (Making of financial management orders) of Part 3A, s 25G of the Guardianship Act gives the Tribunal power to make a financial management order only if, after considering the person's capability to manage his or her own affairs, the Tribunal is satisfied of the three matters listed in paragraphs (a), (b) and (c) of s 25G, namely that the person is not capable of managing their affairs; there is a need for another person to manage those affairs on the person's behalf; and it is in the person's best interests that the order be made.
If the Tribunal exercises the power to make a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate or commit management of the estate to the NSW Trustee and Guardian (the Trustee): Guardianship Act,
s 25M. The Guardianship Act uses the term "protected person" to refer to a person whose estate, all or in part, is subject to a financial management order: s 25D.
A protected person has the right to apply to NCAT for an order revoking or varying that order: Guardianship Act, s 25R(a).
Contained in Division 2 (Review and revocation of financial management orders) of Part 3A, s 25P of the Guardianship Act sets out the powers available to the Tribunal where a protected person has applied to NCAT for an order revoking or varying a financial management order:
25P Action on review
(1) On reviewing a financial management order under section 25N, the Tribunal -
(a) must vary, revoke or confirm the order, and
(b) if it considers it appropriate to do so - may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3.
(2) The Tribunal may revoke a financial management order only if -
(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or
(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
(3) In this section, vary, in relation to a financial management order, includes to exclude (or remove an exclusion of) a specified part of the protected person's estate from the order.
Section 4 imposes a duty on the Tribunal when exercising functions under the Guardianship Act to observe the principles in s 4 of that Act (the section 4 principles):
4 General Principles
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
The obligation to have regard to these principles is reinforced by cl 5(1) of Sch 6 to the NCAT Act which provides that, when exercising its "Division functions" for the purposes of the Guardianship Act, the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act (P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58]; ZGM v ZGN [2018] NSWCATAP 101 at [39]).