Lee Shing Leung v. The Director of Social Welfare and Another
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HCAL 45/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 45 OF 2010 ______________ BETWEEN
______________ Before: Hon Andrew Cheung J in Court Date of Hearing: 8 September 2010 Date of Judgment: 20 September 2010 _______________ J U D G M E N T _______________ Introduction 1.This application for judicial review brings into focus the role played by the Director of Social Welfare in granting normal disability allowance under the Social Security Allowance Scheme (“the Scheme”) and highlights an unsatisfactory aspect of the Scheme. 2.The applicant is 60 years old. He is a permanent resident of Hong Kong. He was born in Indonesia and has received primary education on the Mainland. After arriving in Hong Kong in 1976, he has worked for various shipping companies as a manual labourer on container ships. 3.In March 2003, the applicant injured his left leg in an industrial accident. In November 2007, the applicant had another accident in which his right leg was crushed by a piece of rolled steel while working for a shipping company in Cheung Sha Wan. His right leg was amputated below the knee. 4.According to Mr Hectar Pun, acting for the applicant in these proceedings, the applicant’s claim for employees’ compensation arising from the accident is still pending before the court. Apparently, he also has a common law action for damages to pursue. 5.In any event, he has, since the accident, applied, on five separate occasions, to the Social Welfare Department for the payment of disability allowance, on the ground that he has been “severely disabled” in the industrial accident. It is the applicant’s case that given the injury to his right leg, the pre-existing condition of his left leg, his age, education and background, he has effectively suffered a total loss of earning capacity. 6.Yet on each of these five occasions, he was assessed by a medical doctor in a public hospital managed by the Hospital Authority that he was not “severely disabled” for the purposes of the Scheme for the payment of disability allowance. The last of these applications was rejected on 1 December 2008. From that last refusal, the applicant appealed to the Social Security Appeal Board. The Board referred the applicant to the Medical Assessment Board for an independent assessment. The Medical Assessment Board comprised one medical doctor from the Hospital Authority and two private practitioners. The Medical Assessment Board also concluded that the applicant was not “severely disabled” under the Scheme. Relying on the Medical Assessment Board’s assessment, the Appeal Board dismissed the applicant’s appeal. Application for judicial review 7.The applicant now challenges by way of judicial review both the decision of the Director and the decision of the Appeal Board in relation to his application for disability allowance. 8.Mr Pun relies on four grounds of challenge. First, the respective decisions of the Director and the Appeal Board were illegal because unlawfully, they had either delegated their powers to the Hospital Authority or to the medical doctors concerned, or had acted under their dictation in reaching their decisions. 9.Secondly, the respective decisions were unlawful because both the Director and the Appeal Board had unlawfully fettered their discretions by adhering blindly to the assessments made by the medical doctors. 10.Thirdly, the respective decisions were unlawful because the Director and the Appeal Board, when making their decisions, had failed to take into account all relevant considerations, including in particular, the personal circumstances of the applicant, such as his age, background, past employment history and practical difficulties he faced as a result of the injury. 11.Fourthly, the decisions of the Director and the Appeal Board were irrational in the public law sense because the applicant’s circumstances clearly showed that he was “severely disabled”. Underlying premise of challenge 12.It is plain from Mr Pun’s arguments that these grounds of challenge all proceed on the premise that the Director has the power and responsibility to determine whether an applicant is “severely disabled” within the meaning of the Scheme for the payment of disability allowance, and he has a discretion to exercise as to whether to accept a medical assessment made on the condition of an applicant. A similar assumption is made in relation to the role of the Appeal Board. 13.However, the materials placed before the Court paint a rather different picture. What is the Scheme? 14.Disability allowance under the Scheme includes normal disability allowance and higher disability allowance. Disability allowance is non-contributory and non-means tested. It is designed to provide a monthly cash allowance to Hong Kong residents who are severely disabled to meet their special needs arising from disability. The Director of Social Welfare is the vote controller for the expenditure incurred under the Scheme which amounts to some $8.9 billion in the 2010-11 Estimates, of which $2.6 billion, or 29%, is the estimated expenditure for disability allowance. The current rate of normal disability allowance for the severely disabled is $1,280 per month. As at the end of May 2010, 628,276 persons were beneficiaries of the Scheme, of whom 130,287, or about one-fifth, were disability allowance recipients. 113,575 of them were normal disability allowance recipients. 15.Disability allowance has its origin in the Disability and Infirmity Allowance Scheme, which was introduced on 1 April 1973. It provided for two types of allowance, namely disability allowance and infirmity allowance (now old age allowance) on a non-contributory and non-means tested basis to the severely disabled and the elderly respectively. 16.According to a “Memorandum for Executive Council” prepared for a relevant internal discussion on 9 January 1973, the policy reasons for the introduction of the new allowances were as follows:
17.Annex A (entitled “Eligibility for Disability and Infirmity Allowance”) to the Memorandum read:
Note For the purposes of the scheme, the element of ‘permanency’, which is in Cap. 282, has been excluded from (vi) and (vii)” 18.Annex D to the Memorandum set out the “Machinery of Administration” of the disability allowance:
19.It is therefore plain that right from the beginning, eligibility for disability allowance was to be determined by reference to the concept of “severely disabled” in terms of “a 100% loss of earning capacity”, which was to be assessed in accordance with the criteria of the then workmen’s compensation scheme, that is to say, the First Schedule of the then Workmen’s Compensation Ordinance (Cap 282). More importantly, determination of an applicant’s loss of earning capacity was to be made by medical doctors; the role of the Director of Social Welfare was simply to administer the non-medical side of the scheme, after obtaining a medical assessment of the applicant’s condition. 20.Over the years, the Hospital Authority has, to a significant extent, taken over the role of the Department of Health and the Director of Medical and Health Services in assessing an applicant’s condition. However, the respective roles played by the Director of Social Welfare and the medical doctors under the Scheme have remained unchanged. Thus, according to an internal manual, “Social Security Manual of Procedure – SSA Scheme”,
21.The Social Welfare Department has published a pamphlet to publicise the Scheme. The pamphlet (August 2008 edition) describes eligibility for normal disability allowance in the following terms:
22.According to a government press release (5 November 2008), the Secretary for Labour and Welfare has explained disability allowance under the Scheme in the following terms:
23.It is therefore plain that throughout its history, eligibility for disability allowance is based on the concept of “severely disabled” in terms of a “100% loss of earning capacity”, which is medically determined. The determination has always been done by medical doctors, not by the Director of Social Welfare. Moreover, although the terms used may have their ordinary usage, they bear technical meanings when used in the Scheme. Thus, for instance, whether a person is “severely disabled” is to be determined by a set of criteria. The role of the Director in the Scheme has always been and still is to refer an applicant for medical certification of his condition, based on which the Director will either proceed further to process the application or, where an adverse medical assessment is made, reject the application. The Scheme does not provide for any discretion on the part of the Director to exercise in the determination of whether an applicant is “severely disabled” for the purposes of the Scheme, or to waive the relevant eligibility requirement in appropriate circumstances. The appellate scheme 24.Given all this, it is not at all surprising that the appellate scheme follows the same pattern. 25.According to another pamphlet entitled “A Guide to Social Security Appeals”, also published by the Social Welfare Department,
26.According to the same press release referred to above, the Secretary for Labour and Welfare has explained:
27.In other words, the appellate scheme also provides for the medical assessment of an appellant’s condition by an independent Medical Assessment Board, comprising a medical doctor from the Hospital Authority and two representatives from the Hong Kong Medical Association. Determination of the appeal is based entirely on the assessment by the Medical Assessment Board. No relevant discretion is conferred on the Appeal Board. A clear division of labour 28.The materials before the Court show that under the Scheme for disability allowance, there is a clear division of labour. Determination of whether an applicant is “severely disabled” is in the hands of medical doctors. Processing an application, including obtaining a medical assessment and administration of the other qualifying requirements, is the responsibility of the Director. One thing that stands out is that it is for a medical doctor to determine whether an applicant is “severely disabled”. Leaving aside the odd case where the medical determination is doubtful or is obviously self-contradictory and inconsistent, in which case the Director’s officer would refer the matter back to the relevant medical doctor for clarification, the Director is not concerned with the assessment by the medical doctor. Likewise, in the appellate process, it is the independent Medical Assessment Board which does the assessment. The Appeal Board simply decides the appeal in accordance with the medical assessment. Discussion 29.It is important to note that in this application for judicial review, there is no challenge against the constitutionality or lawfulness of the Scheme for disability allowance or of the relevant appellate scheme. The challenge is focused on the respective decisions of the Director and of the Appeal Board in the instant case. 30.In those circumstances, one must take the relevant schemes as one finds them. Whether they are good schemes, or whether there is room for improvement, is neither here nor there. 31.Under the existing Scheme, there is simply no question of the Director “delegating” his duty to assess an applicant’s condition to a medical doctor, or of his acting under the dictation of the medical doctor. Such questions do not arise because it is not the duty or function of the Director, under the Scheme, to assess an applicant’s condition, in the first place. That function belongs to the medical doctor. 32.Likewise, there is no question of the Director fettering his discretion and adhering blindly to a doctor’s assessment. The truth is that it is not a policy of the Director to ask a doctor to assess an applicant’s condition. There is no such policy in the first place. An applicant for disability allowance is assessed by a medical doctor because the Scheme, designed by the Government of the Hong Kong Special Administrative Region, says so. The Director is just there to administer the Scheme and play his role designated under the Scheme. The question of his fettering his discretion by adhering blindly to a policy made by him never arises. 33.Likewise, the Director has not failed to take into account any relevant considerations in assessing the condition of an applicant. He simply does not assess the condition of an applicant. That function belongs to the doctor under the Scheme. By the same token, it is a non-criticism to say that the Director’s decision on the condition of an applicant is “irrational”. The short answer is that the Director makes no such decision at all under the Scheme. 34.The above reasoning also applies to the Appeal Board and its working relationship with the independent Medical Assessment Board. 35.That must be the end of the applicant’s case. The Checklist 36.Mr Pun argues that the Director’s role under the Scheme goes beyond what has been described. He relies heavily on a checklist, entitled “Checklist for Medical Assessment of Eligibility for Normal Disability Allowance for Disabilities other than Profound Deafness”. The Checklist was formulated and is updated from time to time by the Social Welfare Department in consultation with the Hospital Authority and the Department of Health. The Checklist appears at page 3 of a standardized medical assessment form which medical doctors use to make the relevant assessment. The Checklist reads:
37.Mr Pun relies on the Checklist to argue that the Director has a role to play in determining how an applicant is to be assessed as the Checklist was written by the Social Welfare Department itself. Furthermore, Part (II) of the Checklist lists out matters to be considered which require a consideration of the actual circumstances of the applicant, such as his original occupation and any other kind of work for which the applicant is suited. Mr Pun submits that they are matters that the Director is in an equal, if not in a better position than a medical doctor to consider. The Director cannot therefore leave the consideration and determination of those matters entirely to a doctor, without exercising the Director’s own judgment. 38.In my view, Mr Pun has read too much into the Checklist. The Checklist must be read in its proper context. It is a checklist designed for the “medical assessment” of eligibility for normal disability allowance. The Part (II) criteria only appear in this Checklist for medical assessment. It does not appear in any of the internal or published documents. As Mr Anderson Chow SC, Mr Abraham Chan with him, for the respondents, has pointed out, the Checklist is never meant for public consumption, and more importantly, it is never intended to expand or change the nature of the Scheme for disability allowance. Given the historical context, this must be right. Right from the beginning, assessment of an applicant’s condition is to be done by a medical doctor. Given a doctor’s expertise, such assessment must be limited to a medical assessment only. Any requirement that the assessment should deal with the actual circumstances of an applicant, such as his background, education, past employment history and his prospects of finding jobs in the labour market for the time being, would go well beyond the expertise of a medical doctor. In other words, from day one, it has never been the intention of the designer of the Scheme to require assessment to be done along those lines. 39.As explained, this aspect of the Scheme has never changed. Making the relevant assessment remains the job of doctors. 40.This being the proper context, the Part (II) criteria must be read as simply requiring a doctor to look at the bodily function of the applicant and to assess, in the abstract, whether the applicant is capable, for instance, of undertaking any job. Thus, for example, in the present case, all the doctors involved (and there were no less than seven of them) have taken the same view that the applicant has not suffered a 100% loss of earning capacity because, quite plainly, with his two upper limbs, he can still, at least in theory, undertake sedentary jobs. Whether he can find such jobs in the labour market at any point of time is a matter that obviously goes beyond the expertise of a medical doctor, something which, under the Scheme, the doctor is not concerned with. 41.In this regard, it is also pertinent to take into account the understanding of the Director himself, whose Department, in consultation with the Hospital Authority and the Department of Health, has drawn up the Checklist in the first place, as well as the understanding of the doctors involved in the making of assessment. Their unanimous view, according to the evidence, is that the Part (II) criteria in the Checklist have nothing to do with the actual circumstances of an applicant under assessment, but rather with his bodily function and earning capacity in the abstract. 42.For those reasons, I reject Mr Pun’s argument based on the Checklist. Policy, exception and discretion 43.Mr Pun also runs a more general argument. He says that the Scheme is nothing but a set of policies devised and implemented by the Government. By definition, counsel argues, a policy must admit of exceptions and involve the exercise of discretions. Therefore, counsel reasons, the Director of Social Welfare must have some discretion to exercise under the Scheme in terms of the assessment of an applicant’s condition. Mr Pun is prepared to draw a distinction between a statutory scheme and a non-statutory one. He restricts his argument to a non-statutory scheme, such as the Scheme in question. 44.I have no hesitation in rejecting the contention. No authority has been cited to support the proposition. I see no relevant distinction between a statutory scheme and a non-statutory one. In any event, Mr Pun’s argument is in substance an attack on the Scheme itself, to the extent that it has not, contrary to the legal proposition submitted by Mr Pun, provided the Director with a discretion to exercise. Yet a challenge against the Scheme is something that is not covered by the present application for judicial review. Government’s responsibility 45.Mr Pun also argues that regardless of the position back in 1973, the current position is that generally speaking, medical assessment is done by the Hospital Authority, an independent authority established under the Hospital Authority Ordinance (Cap 113). The Hospital Authority is not part of the Government. It is the Government which has been given the responsibility to formulate and implement policies on social welfare: articles 62(1) and 145 of the Basic Law. Therefore, counsel argues, the Government cannot leave it to the Hospital Authority to make the assessment on the condition of an applicant. At the very least, the Government should retain a residual discretion not to follow the assessment so made by the Hospital Authority as an outsider. 46.I reject this argument. I do not accept the proposition that eligibility or entitlement under a government policy or scheme cannot be made dependent on the obtaining of a certain qualification or certification from an outside body. Academic qualification is, I believe, the best example in the present discussion. In any event, again Mr Pun’s argument is in reality an attack on the existing Scheme, against which no challenge has been mounted in the present judicial review application. Hospital Authority’s role 47.A related argument is the contention by Mr Pun that the Hospital Authority itself has no mandate under the Hospital Authority Ordinance to make the relevant assessments. 48.The Hospital Authority is not before the Court, and I make no comment on this argument, save to say that again, this is an attack on the Scheme. That is to say, the Scheme requires the Hospital Authority to do something that is ultra vires its authority under the Ordinance. However, this goes well outside the scope of challenge under the present application for judicial review. Furthermore, I do not think it is the case of the 1st respondent that under the Scheme, the Hospital Authority is charged with the responsibility for determining eligibility for disability allowance as such. What the Hospital Authority is required to do is to medically assess an applicant for disability allowance, in order to see whether he is “severely disabled” medically in accordance with the criteria set under the Scheme. Outcome 49.For all these reasons, the application for judicial review fails. It is dismissed. I also make an order nisi that the applicant pay to the respondents the costs of these proceedings, including all costs previously reserved, to be taxed if not agreed, together with a certificate for two counsel. I further order legal aid taxation of the applicant’s own costs. Some observations 50.Before parting with this case, the Court would like to make several observations. 51.First, the Court has sympathy for the applicant’s situation. Although medically speaking, he has not suffered a total loss of earning capacity because, as the doctors have correctly assessed, theoretically the applicant may still undertake sedentary jobs, in reality, the chances of his getting such jobs, given his age and background, are slim. The Court is comforted by the fact that the applicant and his wife are now receiving comprehensive social security allowance. It further notes without comment that the applicant is pursuing a claim for employees’ compensation, and possibly he will also commence a common law claim in due course. 52.Secondly, this case highlights a deficiency in the existing Scheme. As it is, the Scheme only looks at an applicant’s bodily function from a purely medical, abstract perspective. No regard is paid to the applicant’s actual circumstances. This could easily lead to hardship. It was, the Court believes, a consideration of this sort that led to the enactment of section 9(1A) of the Employees’ Compensation Ordinance (Cap 282) in 1982 to allow the court to award employees’ compensation on the basis of the percentage of the loss of earning capacity actually suffered by an injured employee by reference to his actual circumstances, rather than on the basis of a statutorily fixed percentage of the loss of earning capacity specified in the First Schedule, when circumstances so warrant. 53.What is singularly missing in the Scheme is a similar power to go beyond the medical assessment and to look at the actual circumstances of an applicant to decide whether he is really severely disabled, in the sense of having suffered a 100% loss of earning capacity in real life. At present, even if a court had, in employees’ compensation proceedings, determined that an applicant had suffered a total loss of earning capacity according to the provisions in section 9(1A) and awarded him employees’ compensation accordingly, still the Scheme would not have regarded the applicant as being “severely disabled” as the relevant medical assessment would still have been based on the fixed percentages in the First Schedule of the Ordinance. 54.The relevant reform to the employees’ compensation scheme by means of the addition of section 9(1A) was made almost 30 years ago. A similar reform to the Scheme to give it the same flexibility would appear to be due. The Court is glad to hear from leading counsel for the Director that a review of the Scheme is underway to see whether it can be improved. 55.Thirdly, the decision in the present case is based on the grounds ofchallenge actually relied on. There is no constitutional challenge against the Scheme. It is therefore inappropriate to express any views on any such possible challenge. 56.Lastly, I thank counsel for their assistance.
Mr Hectar Pun, instructed by Peter K H Wong & Co, for the applicant Mr Anderson Chow SC and Mr Abraham Chan, instructed by the Department of Justice, for the respondents Appeal by the applicant to Court of Appeal dismissed. Please refer to CACV223/2010 dated 17 June 2011 | ||||||||||||||||||