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Accident Compensation Cases

Ravestein v Accident Rehabilitation and Compensation Insurance Corporation (DC, 28/04/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether a person who is receiving Attendant Care (being Personal Care and Mobility Assistance) pursuant to section 80 of the Accident Compensation Act 1982, as continued under section 149(3) of the Accident Rehabilitation and Compensation Insurance 1992, and who qualifies for entitlements under the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994, can receive those latter entitlements without making an election under section 149(6) as required pursuant to Regulation 21(3) of the Complex Personal Injury Regulations. 
If the answer to the above is “No”, then counsel for the appellant contends that the provisions of Regulation 21(3) of the CPI Regs must be regarded as being ultra vires the Accident Rehabilitation and Compensation Insurance Act 1992. 
The facts which are relevant to the determination of this issue are not in dispute and may be stated as follows. 
The appellant was born in September 1983 and as a consequence of complications at the time of her birth suffers from Spastic Quadriplegia. The appellant was granted cover for those injuries under 1982 Accident Compensation Act, it being accepted that those injuries were as a consequence of medical misadventure. 
Subsequent to the grant of cover, the Corporation provided assistance to the appellant for a number of matters in the area of social rehabilitation and included in the entitlements so granted was the provision of Attendant Care pursuant to section 80 of the 1982 Act, backdated to the date of the appellant's birth. The sum provided for that Attendant Care was initially $480 per week but has since risen considerably. 
In September 1994 the appellant's mother applied for the appellant to be assessed under the Complex Personal Injury Regulations 1994 and the Corporation carried out a number of assessments under those regulations in order to prepare a social rehabilitation programme. Discussions and negotiations were held with the appellant's father regarding the content of that social rehabilitation programme and by late 1995 it seems that common ground was reached between the Corporation and the appellant's father as to what the particular form and content of the appellant's ongoing social rehabilitation programme was to be. 
However, it was at this time that the appellant's father advised that he wished the appellant to continue to have Attendant Care determined and paid under the provisions of the 1982 Act and not under the 1992 Act pursuant to the Complex Injury Regulations. Discussions on this impasse concluded with the Corporation issuing a decision letter dated 14 March 1996 advising that the appellant was not entitled to assistance under the Complex Personal Injury Regulations unless an election was made in accordance with Regulation 21 to have Attendant Care provided for and included in the rehabilitation plan established under those Regulations, with the consequence that entitlements to Attendant Care under section 80 of the 1982 Act would cease. It is that decision which the appellant sought to review, and when the decision was confirmed on review, has now appealed to this Court. 
In essence, it is the Corporation's position that the appellant cannot continue to enjoy payments for Attendant Care as assessed and determined pursuant to section 80 of the 1982 Act and have all other aspects of social rehabilitation determined and paid pursuant to the Complex Personal Injury Regulations, but rather the appellant can continue to receive Attendant Care pursuant to section 80 of the 1982 Act and have no entitlements under the CPI Regulations, or give up her entitlements under the 1982 Act and elect to have all aspects of social rehabilitation covered by the Complex Personal Injury Regulations. 
From the appellant's perspective, it is apparently the case that it is to her advantage to continue with the Attendant Care under the 1982 Act as that Act does not place any restriction on the attendant care being only available in New Zealand, as does the Attendant Care under the 1992 Act and CPI Regulations. 
It is the principal submission of counsel for the appellant that if the Corporation is correct in the stand it has taken and that the various provisions of the Acts and Regulations bring about the situation as stated above, then the specific Regulation which requires the appellant to give up her rights and entitlements as provided in section 80 of the 1982 Act, being the provisions of Regulation 21(3) of the CPI Regs, must be held to be ultra vires the provisions of the 1992 Act. 
The relevant statutory provisions required to be considered are as follows: 
Section 80(3) of the Accident Compensation Act 1982 states as follows: 
“Where a person suffers personal injury by accident in respect of which she has cover and the injury is of such a nature that she must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution. ”
Section 149(3) of the Accident Rehabilitation and Compensation Insurance Act 1992, being one of the transitional provisions of that Act, states: 
“[(3)
Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 in respect of attendant care (being personal care and mobility assistance necessary for the injured person) at a weekly rate of $350 or more immediately before the 1st day of July 1992, those sections shall continue to apply in respect of that person as if those sections had not been repealed and the entitlements in respect of the person may be reassessed from time to time under those sections. 
[(4)
Where any person who qualifies under subsection (3) of this section was receiving compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 in respect of household help (being provision of assistance in respect of domestic activities that would be performed by the injured person if not injured and is necessary to enable the person to remain in or take up suitable residence) immediately before the 1st day of July 1992, that entitlement is deemed to be an entitlement to compensation in respect of attendant care and subsection (3) of this section shall apply accordingly. 
[(5)
Where subsection (3) of this section applies, the person concerned - 
(a)
Shall not be entitled to receive compensation in respect of attendant care or household help under regulations made under this Act; but 
(b)
Shall be entitled, not more than once in any 12- month period, to elect to be assessed for entitlement for compensation for attendant care and household help under regulations made under this Act. 
[(6)
Following the assessment referred to in subsection (5)(b) of this section, the person concerned may irrevocably elect - 
(a)
That subsection (3) of this section shall no longer apply in respect of the person; and 
(b)
That the entitlements of the person to compensation for attendant care and household help shall thereafter be determined in accordance with regulations made under this Act. ”
Regulation 21 of the Complex Personal Injury Regulations 
“21. Claimant receiving payments under section 149 — 
(1)
Where a claimant who is in receipt of payments continued under section 149 of the Act elects, under subsection (5) of that section, to be assessed for entitlement for compensation for attendant care and household help under regulations made under the Act, he or she shall be deemed also to have made a written request for an evaluation under regulation 6 of these regulations 
(2)
Where a claimant who is in receipt of payments continued under section 149 of the Act agrees with the claimant's social rehabilitation programme, - 
(a)
Either - 
(i)
The claimant shall signify that agreement by signing the social rehabilitation programme under regulation 15(1) of these regulations; or 
(ii)
A person acting on behalf of the claimant shall sign the claimant's social rehabilitation programme under regulation 15(2) of these regulations; and 
(b)
The claimant shall make an election under section 149(6) of the Act. 
(3)
Where a claimant who is in receipt of payments continued under section 149 of the Act is party to a social rehabilitation programme but does not make an election as required by subclause (2)(b) of this regulation, the claimant shall not be entitled to any social rehabilitation under the programme. 
(4)
Where a claimant who is in receipt of payments continued under section 149 of the Act is a party to a social rehabilitation programme that includes the provision of, or payment for, attendant care or household help, - 
(a)
Any reference to attendant care in the programme shall read as a reference to attendant care of the kind described in section 149(2)(a) of the Act; and 
(b)
Any reference to household help in the programme shall be read as a reference to household help of the kind described in section 149(2)(b) of the Act. 
167. Regulations — (1) The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations — 
 
(l)
Prescribing the extent to which the Corporation may meet the costs of social rehabilitation, health care treatment, services and certificates, and related transport costs, and prescribing the circumstances in which, and the method by which, the Corporation shall make any payment in respect of that rehabilitation or those treatments, services certificates, and related transport costs, and may enter into arrangements and make contribution in respect them; and prescribing the persons to whom those payments may be so made: ”
Submissions on Behalf of Appellant 
Mr Judd Q.C submits that Regulation 21(2) and (3) of the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 (the CPI Regs) are ultra vires the 1992 Act and therefore invalid. He submits that the appellant was receiving Attendant Care and Household Help compensation pursuant to section 80 of the 1982 Act and that the provisions of section 149(3) of the 1992 Act entitled her to continue to receive compensation for Attendant Care and Household Help under that 1982 Act regime, but that she may elect to be assessed under section 149(5) and having been assessed she may make an irrevocable election under section 149(6). 
Counsel submitted that the appellant had not elected that section 149(3) no longer apply to her and therefore the statutory right to Attendant Care and Household Help pursuant to section 80 of the 1982 Act continues. He submitted that only a statutory provision could take that right away and that there is no such statutory provision. 
Counsel submitted that if the matter had stopped there everything would have been in order, but he submitted that with the introduction of the CPI Regulations there was in fact a coercive regime brought into being which took away the right which the statutes had given appellant. Counsel submitted that the Regulation purports to deprive the appellant of social rehabilitation compensation under the 1992 Act unless she irrevocably elects that section 149(3) shall no longer apply to her. Counsel submitted that the CPI Regs have the effect of denying to the appellant that to which she is entitled. Those regulations state that she can have one or the other, whereas the Act, he contends, entitles her to have both if that is what she wants. 
Counsel submitted that the right specifically conferred by section 149 cannot be removed by regulation promulgated pursuant to a regulation making power unless that statutory power to do so is specific. 
Counsel submits that Regulation 21 of the CPI Regs plainly states that a claimant is not entitled to any social rehabilitation under the programme unless the claimant makes an election under section 149(6), in other words unless the claimant relinquishes the right to receive Attendant Care which is given to her by section 80 of the 1982 Act and section 149(3) of the 1992 Act. 
Counsel submits that section 149(6) contemplates that a claimant may have compensation for Attendant Care pursuant to either section 80 of the 1982 Act or pursuant to regulations promulgated under the 1992 Act. If Reg 21 of the CPI Regs had been framed in such a way that compensation for Attendant Care and Household Help under the regulations was contingent upon an election being made under section 149(6), the Regulation and section 149(6) would be in harmony and would compliment each other. However he submits that Regulation 21 purports to deny the claimant any social rehabilitation under the programme unless she makes an election to cease to have her entitlement to attendant care provided pursuant to s 80 of the 1982 Act. 
In this way he submits Reg 21 goes beyond what is permissible in delegated legislation unless there is a statutory provision which expressly authorises the negativing or the removal of the right conferred by section 149(3). As there is no such statutory provision, counsel submits that Reg 21(2) and (3) are ultra vires and invalid. 
Submissions on Behalf of Respondent 
Mr Tui, counsel for the respondent, submits that Regulation 21 of the CPI Regs is intra vires and does not conflict with any rights conferred under section 149 of the 1992 Act. Counsel notes that section 167 of the 1992 Act authorises the Governor-General to make regulations. The kinds of regulations that may be made are prescribed under section 167(1)(a) to (v). The particular authorising paragraph relevant to this appeal is section 167(1)(l). 
Counsel notes that section 19 of the 1992 Act requires that any rehabilitation be provided under an approved individual rehabilitation programme and that under section 20 the identification and facilitation of rehabilitation services does not impose any responsibility on the Corporation beyond that otherwise imposed by the Act or by Regulation made under the Act. Counsel further noted that the specific provision relating to payment for social rehabilitation, being the provision relevant to this appeal, is section 26 and its amended provision section 26A. Counsel noted that the emphasis under part III of the 1992 Act is on the provision of rehabilitation in accordance with Regulations. 
Counsel submitted that section 26 does not prescribe the circumstances, when, where, what or to whom assistance for social rehabilitation will be provided. That is left to the Regulations. Counsel noted that a substantial number of Regulations were promulgated to provide for the various aspects of social rehabilitation. 
In so far as the Complex Personal Injury Regulations are concerned, counsel submitted that these Regulations were enacted to provide an holistic approach to the provision of complete rehabilitation services to those with very severe personal injuries. The aim was to address the needs of the claimant in a comprehensive manner rather than by resort to the various sets of Social Rehabilitation Regulations. Counsel notes that under Reg 17(e) of the CPI Regs it states that if a claimant receives social rehabilitation under a social rehabilitation programme under those Regulations, that claimant is not entitled to any social rehabilitation provided or paid for under any other Regulations made under the Act. 
Counsel submitted that section 149 only confers a right to ongoing entitlement under section 80 of the 1982 Act. It does not confer a right to both Attendant Care compensation under the 1982 Act and other forms of social rehabilitation under the 1992 Act. Counsel submits that the purpose of section 149(5)(a) is to prevent claimants from double dipping but it does not expressly or directly provide a right to claimants to other forms of social rehabilitation. 
Counsel submitted that Regulation 21(3) does not preclude the appellant from receiving non CPI Social Rehabilitation entitlements. Its effect is merely to preclude entitlement to CPI Social Rehabilitation Programme entitlements. The appellant would be entitled to receive all types of social rehabilitation provided for in the various sets of Social Rehabilitation Regulations but that she cannot have the benefit of the CPI Regulations. On that basis, counsel submits that no right has been removed by virtue of those Regulations. 
Decision 
There can be no question but that the appellant's right to receive Attendant Care and Home Help compensation fixed under section 80 of the 1982 Act continued on after the repeal of that Act by the 1992 Act from 1 July 1992 onwards. Section 149 of the 1992 Act went on to state, by subsections (5) and (6) that a person who has that right is not entitled also to receive any compensation for Attendant Care or Household Help under Regulations made under the 1992 Act. That is, that there can be no double dipping. 
That subsection also states that a person who has the rights under the 1982 Act may nevertheless elect to be assessed for compensation for Attendant Care and Household Help under Regulations made under the 1992 Act. If such a person requests to be assessed, then at that stage that person must elect whether to continue to receive that Attendant Care and Household Help compensation pursuant to rights reserved or whether to have a continuing and future entitlement for those categories thereafter determined and fixed by Regulations made under the 1992 Act. 
Those statutory provisions simply provide for a person to have the right to elect to continue under the regime of the former Act or to come under the 1992 Act and the Regulations made under it. 
In this present case if the appellant were not coincidentally a person who qualified as having a complex personal injury, she would still have the right to elect. 
At the relevant time there were eight sets of Social Rehabilitation Regulations in force established under the 1992 Act, including Regulations making provision for Home Help and Attendant Care. Thus, it was that there were six other sets of Social Rehabilitation Regulations to which the appellant could have recourse, say of example the Aids and Appliances Regulations, for her needs as they may be assessed to be, and the appellant would have been able to receive compensation under those regulations without being called upon to make any election to abandon her rights to Attendant Care and Home Help compensation under section 80 of the 1982 Act. 
It is that background which I consider to be particularly relevant to the question of whether Reg 21 of the CPI Regs is ultra vires. 
As was submitted by counsel for the respondent, the CPI Regulations were promulgated in 1994 to provide for an holistic approach to the entitlements to rehabilitation services for those persons with severe personal injuries. It is noted that Reg 3 of the CPI Regs states: 
“The purposes of these regulations is to adopt goal-orientated approach to the social rehabilitation of any claimant whose personal injury is a complex personal injury. ”
As is further noted by Regulations 17, the regulations provide for the entering into of a social rehabilitation programme which provides for all the various requirements of the claimant and these are all met and satisfied under the one umbrella of those regulations, rather than them being dealt with piece meal under the various Social Rehabilitation Regulations that had already been promulgated under the Act. 
Regulations 6 of the CPI Regs provides for a claimant to request an evaluation of whether or not that claimant's personal injury is a complex personal injury and thereby qualifies for consideration under the CPI Regs. 
Under Regulation 17 where a social rehabilitation programme has been agreed to, that programme is thereupon implemented under the CPI Regs to achieve the goals stated. Again in Regulation 17(e) there is the provision preventing double dipping which says that whilst a claimant is receiving payments under the CPI Regs, that claimant is not entitled to any other social rehabilitation provided by any other Regulations. I think it is important to note that the double dipping provision applies “While the social rehabilitation programme is in force”
Thus, if a claimant elected not to continue with the social rehabilitation programme entered into pursuant to the CPI Regs, then that claimant would again be entitled to apply for various social rehabilitation entitlements pursuant to the various sets of Regulations made under the Act. 
This provisions leads on to Regulation 21 which is dealing with the case where a claimant is not receiving social rehabilitation pursuant to the 1992 Act, as is the case for the category of claimants referred to in Reg 17(e) but rather where that claimant is receiving compensation pursuant to her entitlement granted under the 1982 Act, which is recognised as enduring by virtue of section 149(3) of the Act. It is to that category of claimant that Reg 21(3) states that that person cannot receive entitlements under the CPI Regs as well as receiving the entitlements to Home Help and Attendant Care as provided in section 149(3) but that the claimant is required to elect, and in the context of Reg 21(3) it is an election whether to accept the package of benefits provided under the CPI Regs and the Social Rehabilitation Programme that has been devised for the claimant under those Regs, or whether the claimant wishes to remain outside the CPI Regs and continue to receive payments of Home Help and Attendant Care as fixed under section 80 of the 1982 Act, together with any other entitlements which may have been or could be granted to her under the various other Social Rehabilitation Regulations promulgated under the 1992 Act. 
I find that all that Reg 21(3) is designed to prevent is a claimant being entitled to the umbrella benefits provided by the CPI Regs in addition to the particular benefits enduring under the earlier Act. There is no question that Reg 21(3) does preclude a claimant from any entitlement that may have been assessed when the claimant's social rehabilitation programme was devised and agreed to if the election is not made, but that limitation is not removing the claimant's right to social rehabilitation, which is guaranteed under the Act, because the various individual Rehabilitation Regulations providing for the various needs are there in lieu of the CPI Regs in those circumstances. 
As that is the position as I find it to be, I find that the Reg 21(3) cannot be said to be taking away a statutory right as that right is only affected if the claimant elects to come under the alternative regime of the CPI Regs. There is certainly no compulsion for a claimant to do so, it is simply that if the claimant elects not to do so a certain particular type of social rehabilitation is not available in the all embracing way that those regulations were designed to provide. 
In the final analysis therefore, I find that Regulation 21 of the CPI Regs does not go beyond what is permissible or seeks to deny or remove a right conferred upon a claimant who comes within section 149(3). Certainly in terms of the regulation making power granted to the Governor-General under section 167(l) of the Act there is the power to make regulations which prescribe the circumstances in which the Corporation shall make any payment and prescribing the persons to whom those payments may be so made
Under that Regulation making power the CPI Regs prescribed the parameters for qualifying as a complex personal injury and the circumstances and the persons who may qualify for treatment and entitlements under those Regulations. The CPI Regulations so made under that empowering provision make no provision for the removal of a statutory right, rather inter alia, they make provision for a claimant who is within a particular category to have the election or option into which category that person will continue to receive social rehabilitation entitlements. If a claimant makes an election and the claimant's rights under section 149(3) are foregone, that is simply a consequence of the circumstances of a new social rehabilitation scheme that the claimant has elected to enter. In those circumstances I find that the removal of the right under section 149(3) cannot be said to be forced on the claimant. 
Conversely if the claimant elects to retain her rights under section 149(3) she does not comply with the requirements for the receiving of social rehabilitation under the CPI Regs. I find that qualifying (or disqualifying) feature is certainly not outside the ambit of the power given by the Act to make such Regulations. 
Counsel for the appellant referred to two passages from Bennion Statutory Interpretation 2nd Edition at pages 152 and 160 respectively which stated as follows: 
“[Delegated legislation] must not conflict with Act Unless the enabling Act so provides, delegated legislation cannot override any Act — and certainly not the enabling Act itself … This principle arises from the very nature of delegated legislation, and does not need to be stated in the enabling Act. 
(l)
Any provisions of an item of delegated legislation is ineffective if it goes outside the powers which (expressly or by implication) are conferred on the delegate by the enabling Act. The provision is then said to be ultra vires (beyond the powers). This applies even where the instrument has been sanctioned by a confirming authority. However, the instrument is not be treated as ineffective until declared to be so by a Court of competent jurisdiction ”
Those references encapsulate the principles applicable to the question of the vires of delegated legislation. In addition to those principles, there is the principle as enunciated by the Court of Appeal in Edwards v Onehunga High School Board 1974 2 NZLR 238 where the Court ruled that the starting point is that there is a presumption of the validity of subordinate legislation. Furthermore, in the decision of Brader v Ministry of Transport 1981 1NZLR 73 the Court ruled that the question of vires was not one which required a consideration of reasonableness of the Regulation. It stated that a Court was not entitled to disallow Regulations which appear to be within the intention of Parliament merely because the Court thinks them unreasonable. It is the duty of the Court to search for the intention of Parliament and to support Regulations that keep within that intention and to disallow such as do not. Reasonableness or otherwise is not a consideration. 
Whilst from the appellant's perspective it may be considered less than fair for her not to be able to retain the perceived privileges of Attendant Care payments under section 80 of the 1982 Act and also to be able to receive the Basket of entitlements which the CPI Regs may give her, nevertheless that is a policy decision which I find is well within the Governor-General's powers to make by way of Regulation. The appellant's rights to social rehabilitation are not affected, as I have noted, because she is still entitled to have recourse to the full schedule of Social Rehabilitation Regulations for which she may qualify, as is contemplated by the Act and in particular sections 26 and 26A. 
I find that there is no denial, by the CPI Regs, of this appellant's rights to social rehabilitation and for this reason I rule that Regulation 21 of the CPI Regs is intra vires the ARCIC Act 1992, and the effect of it for this appellant is as was stated by the Corporation in its original decision letter of 18 March 1996. 
For the foregoing reasons therefore, this appeal is dismissed. 

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