Jmg (by Her Litigation Guardian Amb) v Ccs Disability Action (Wellington Branch) Incorporated
| Jurisdiction | New Zealand |
| Judge | MILLER J |
| Judgment Date | 28 October 2011 |
| Court | High Court |
| Docket Number | CIV-2011-485-834 |
| Date | 28 October 2011 |
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-834
Under the Protection of Personal and Property Rights Act 1988
B Corkill QC and M Powell for Appellant
R Buchanan for Respondent
A Douglass for Mr and Mrs E J Pengelly for JCE H M Aikman QC Amicus
JUDGMENT OF MILLER J
The question in this appeal is whether the Family Court's jurisdiction under s 10(4) of the Protection of Personal and Property Rights Act 1988 extends to modifying a tenancy between a landlord and tenant, neither of whom is a protected person, so that a protected person becomes an additional tenant in order that he may be provided with educational, rehabilitative, therapeutic or other services.
If the Family Court, which has made such order, was without jurisdiction, I must also consider whether personal orders for the delivery of services to the protected person should be modified to achieve the ends which the Family Court, for good reason, sought to achieve.
JCE is the protected person. He has Down's syndrome and intellectual disabilities. His father is his property manager and his mother is his welfare guardian. Services have been provided to him by the respondent, CCS, following a needs assessment undertaken on 6 July 2010.
JCE has formed a relationship with JMG and he lives with her in her flat. She too has Down's syndrome and has needs, although their extent has never been disclosed. She does not have a property manager or a welfare guardian appointed on her behalf, because her mother, DH, thinks it unnecessary and inappropriate. DH does accept that it is not appropriate for JMG to swear affidavits in this litigation, and a litigation guardian, AMB, was appointed for JMG in the Family Court and represents her here, as appellant. I note that AMB is a well-qualified and experienced person in the disability support field. DH is not a party to the litigation, her request for joinder as a party to the appeal having been refused.
Serious conflict has arisen between the parents on each side. DH does not agree with decisions made by JCE's parents, and she has decided that JCE does not meet the criteria for appointment of welfare and/or property guardians. It is said that she has sought to impose her views on JCE, and his parents, and CCS. As a result of the resulting conflict JCE has not been receiving the 11 hours of assistance to which he is entitled each week and JCE's father has refused DH's demands for rent, although he does otherwise contribute to JCE's expenses.
The Family Court Judge found that JCE is caught in the middle of what can only be a confusing situation, and the conflict is unsettling. He found that JCE appeared to be manipulated in an inappropriate way, and he plainly attributed that to JMG and DH.
The order for the provision of services to JCE was not opposed in the Family Court, although JMG was a party through her litigation guardian. The issue was implementation. The Judge described the issue in this way:
As indicated the order self is not opposed, but rather how the order is implemented becomes the crucial issue. On the face of it JMG has a right to control who enters the property and the flat as she appears to be the sole tenant. By this I understand Ms Davis to be arguing that her client is the sole signatory to a tenancy agreement. As an officer of the Court she confirmed to the Court that in fact there is a tenancy agreement (the landlord being a private landlord) between the landlord and JMG. I have subsequently been informed by counsel, Ms Davis, that “JMG is the sole tenant of the flat in which she and JCE are residing. JCE is not a tenant or a co-tenant of the flat and neither are his welfare guardian or his property manager. JMG's mother, DH is agent for JMG and in the place for tenant's details the agreement reads JMG (DH as agent)”. The fact that the information received refers yet again to the exclusion of JCE's family is yet another example of the animosity and dysfunction prevailing in this case.
The document has not been sighted by the Court. It does raise an issue as to how someone with the purported difficulties that JMG may have, has capacity to enter into a lease agreement which is a contract between her and the landlord. However, for the purposes of this hearing, I am approaching the matter on the basis that JMG is the sole signatory to the lease.
What is also clear is that JMG and JCE live together in a de facto relationship in this property. It is their home. Because of the fact that it is the home of both JCE and JMG, each of them have the right to occupy irrespective of who is on the lease.
The Judge expressed concern that JCE was being deprived of his rights at law, including rights under the Convention on the Rights of Persons with Disabilities, as a result of the conflict. He found:
When JCE and JMG started their relationship JMG must have been cognisant of JCE's condition and needs. She has chosen to live with him against that background.
It is clear from the submissions made by Ms Pengelly that JCE is not attending any courses at the present time. He is not attending employment or participating in special Olympic swimming events which he has done previously. He appears totally isolated. When he was spoken to by his counsel he spoke with great pleasure and pride when discussing the previous jobs that he has held, courses he has attended, and his swimming. He also appears to have had an excellent relationship with his own family in the past. He now refuses to be supported by CCS and says that this is because the agency has been “mean to JMG”. He says that his girlfriend won't let CCS in the house or his parents and she won't let his father pick him up and take him to swimming. It was clear from the submissions made that JCE found the situation very difficult and he hated the fighting.
It appears that JCE is being manipulated or controlled by his partner JMG contrary to JCE's best interests and contrary to the Convention of the Rights of Persons with Disabilities. This case is yet another attempt to seek to exercise control contrary to the interests of JCE and purportedly for JMG's own personal views and wishes.
The Judge noted that a source of contention between the parties is that JMG is paying the rent, while JCE's parents refuse to contribute, apparently because of difficulties with the provision of services and attempts to exclude them from the flat.
The Judge made the orders sought, being a personal order that JCE be provided with educational, rehabilitative, therapeutic, or other services, specifically CCS's Disability Action Supported Independent Living Services as agreed with Life Unlimited, a Needs Assessment and Service Co-Ordination Agency, and his welfare guardian.
The Judge responded to a submission that it was unacceptable and unprofessional for CCS workers to try to “force” their way into a flat of which JMG is the sole tenant by noting that the Convention rights invoked in support of this submission applied to both parties, not just to JMG. JCE was entitled to a range of in-home residential and other community support services, and he was entitled not to be subjected to arbitrary or unlawful interference.
The Judge addressed what is for my purposes the central issue, holding:
I then turn my mind as to what other orders may be necessary to give effect to this order. It seems to me that an order vesting the tenancy in both JMG and JCE would be appropriate. It seems wrong in principle that JCE's vulnerability can be exploited as a consequence of JMG controlling the lease. That flies in the face of his rights and protection given to him by the convention. I remind myself that it is his partner who professes to love and support him who is denying him the very supports he is entitled to and which he is in need of. As Judge Inglis QC said in Re R “I do not consider that the general power in s 10(4) can be interpreted as necessarily limited to power to elaborate upon or refine the kinds of orders expressly contemplated by s 10(1)”. Section 10(4) surely is a direction to the Court enabling it to supplement a personal order with an order that enables the service provider to provide JCE with services without inappropriate intervention from his partner. This can be achieved by vesting the tenancy in both JMG and JCE jointly. Such an order does not alter the current living arrangements that both parties have agreed upon.
The Judge accepted that the landlord had not yet had notice of the possibility that the tenancy would be vested in both occupants. He arranged for service on the landlord and an opportunity to object. Subject to anything the landlord had to say, the order that the tenancy be vested in both JCE and JMG would be supplemented with an order that allowed CCS to attend at any residential address where JCE may be living in order to provide him with the services that are available for him. JCE was precluded from issuing any instructions to CCS to stay away. Because he would have equal rights of occupation, JMG and her agent DH would not be able to issue a trespass order.
The Judge was not provided with a copy of the tenancy agreement, DH apparently having refused to provide it, but he did observe that one tenant not uncommonly signs a tenancy agreement as agent for another who the landlord knows will be residing in the house. The agreement was included in the appeal bundle. It lends some support to the Judge's observation, indicating that the landlord had specifically consented to JCE living at...
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