Lee Shing Leung v. The Director of Social Welfare and Another
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CACV 223/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 223 OF 2010 (ON APPEAL FROM HCAL NO. 45 OF 2010) ________________________ BETWEEN
________________________ Before: Hon Tang Acting CJHC, Fok and Chu JJA in Court Date of Hearing: 10 June 2011 Date of Handing Down Judgment: 17 June 2011 ________________________ J U D G M E N T ________________________ Hon Tang Acting CJHC: 1.I have had the opportunity to read Fok JA’s judgment in draft. I agree with it and have nothing to add. Hon Fok JA: Introduction 2.This appeal concerns the role of the Director of Social Welfare (“the Director”) in granting normal disability allowance (“NDA”) under the Social Security Allowance Scheme (“the Scheme”). The applicant had applied to the Director for NDA but his application was rejected and an appeal from that rejection was dismissed. A. Cheung J dismissed the application for judicial review and the applicant challenges his decision on this appeal. 3.The applicant is a permanent resident aged 60. He was born in Indonesia, educated up to primary level in the Mainland and came to Hong Kong in 1976. After his arrival he worked for various shipping companies as a manual labourer on container ships. 4.In March 2005, the applicant injured his left leg in an accident at work. Subsequently, in November 2007, the applicant was injured in an accident at work as a result of which his right leg was amputated below the knee. As a result of the latter accident, the applicant has commenced employees’ compensation proceedings and a common law action for damages. 5.Since November 2007, the applicant has applied on five occasions, in November 2007, January, March, June and November 2008 respectively, to the Social Welfare Department (“SWD”) for NDA on the ground that he has been “severely disabled” as a result of the accident. He contends that as a result of the injury to his right leg, the pre-existing condition in his left leg, his age, education and background, he has effectively suffered a total loss of earning capacity. 6.On each occasion when he applied for NDA, the applicant was refused NDA on the basis that he had been assessed by a medical doctor in a public hospital managed by the Hospital Authority not to be “severely disabled” for the purposes of the Scheme and for the payment of NDA. The fifth, and last, application for NDA was rejected by the Director on 1 December 2008 on the basis of a Medical Assessment Form dated 19 November 2008. 7.Following the rejection of the fifth application, the applicant appealed that decision to the Social Security Appeal Board (“SSAB”). On 25 February 2009, in connection with that appeal, the applicant was examined by a Medical Assessment Board, which concluded that he was not “severely disabled” under the Scheme. On this basis, the SSAB dismissed his appeal on 9 March 2009. 8.It is also pertinent to mention that, after the rejection of his fifth application for NDA on 1 December 2008, the applicant lodged a complaint against the SWD with the Ombudsman. The Ombudsman conducted an investigation into the SWD and issued an Investigation Report dated 30 September 2009. This was followed by a Direct Investigation Report issued by the Ombudsman dated October 2009, entitled “Granting of Disability Allowance and Processing of Appeals by Social Welfare Department”. The grounds of challenge and the Judgment below 9.The two decisions that were the subject of the judicial review below were the Director’s decision dated 1 December 2008 to reject the applicant’s application for NDA and the SSAB’s decision dated 9 March 2009 to dismiss the applicant’s appeal from that earlier decision. 10.Four grounds of challenge were raised in the Form 86A Notice.
11.After analysing the Scheme and the appeal scheme, the Judge noted that the applicant was not challenging the constitutionality or lawfulness of the Scheme or the appeal scheme but instead was focusing on the respective decisions of the Director and the SSAB (Judgment §29). As he noted, in paragraph 30 of the Judgment:
12.The Judge held that under the Scheme there was 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. That was because, under the Scheme, it was not the duty or function of the Director to assess an applicant’s condition: that function belonged to the medical doctor (Judgment §31). 13.The Judge held that, likewise, there was no question of the Director fettering his discretion and adhering blindly to a doctor’s assessment. An applicant was assessed by a medical doctor because the Scheme requires this (Judgment §32). 14.The Judge held that the Director did not fail to take into account any relevant considerations in assessing the condition of the applicant: he did not assess the applicant at all, that function belonging under the Scheme to the doctor. There was therefore no question of the Director having made a decision on the condition of the applicant that was irrational since the Director made no such decision at all under the Scheme (Judgment §33). 15.The Judge held that this reasoning also applied to the SSAB and its relationship with the independent Medical Assessment Board (Judgment §34). The applicant’s contentions on appeal 16.On this appeal, three principal submissions are advanced in the skeleton submissions for the applicant in support of the four grounds of challenge raised in the Form 86A Notice. 17.The first submission is based on the applicant’s case as to the proper interpretation of the Scheme. The applicant contends that the Judge erred in finding that eligibility for NDA needs to be determined by reference to the concept of “severely disabled” in terms of “a 100% loss of earning capacity” and that the determination of an applicant’s loss of earning capacity was to be made solely by medical doctors so that the Director had no part to play. 18.Instead, the applicant says that the Judge should have found that an applicant for NDA would fulfil the eligibility criteria if he or she is “in a position broadly equivalent to 100% loss of earning capacity according to the criteria in the First Schedule of the Employees Compensation Ordinance (Cap. 282)” and the Director could make that decision relying in part on medical assessments. In support of this interpretation, the applicant relies on the Checklist for NDA and the underlying reasons for introducing disability allowance. 19.Further, the applicant refers to comments of the Judge in which he acknowledged that his interpretation would lead to “deficiency in the existing Scheme” (Judgment §52) and disentitle the Director from looking “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” (Judgment §53). The applicant says the Judge should have found it could not have been the intention of the Executive to formulate a policy under which the determination of an applicant’s loss of earning capacity was to be made solely by medical doctors, irrespective of economic and other realities, such that the Director had no further part to play in the decision-making. 20.The applicant’s second submission is that the Director is responsible for the Scheme. In this regard, the applicant refers to various articles in the Basic Law, namely Articles 36, 59, 60, 62 and 145. The applicant contends that the HKSAR Government is charged with a constitutional duty to administer the social welfare system and formulate policies in respect of it so that it, through the Director, makes final decisions on eligibility. 21.In support of this argument, the applicant relies on the fact that the Director is the vote controller of public monies allocated for social welfare. 22.Finally, in this context, the applicant submits that the Hospital Authority has no power to determine applications for NDA and that the respondents’ position fails to recognise the principle of legal accountability which means that one body is ultimately accountable for administrative decision-making under the law. The applicant submits that the Hospital Authority cannot be legally responsible for assessments done on behalf of the Director because that would be ultra vires the Hospital Authority Ordinance, Cap. 113. 23.The applicant’s third submission, relying on case law including Secretary for Security v Prabakar (2004) 7 HKCFAR 187, is that, if the Director is responsible for making final decisions on eligibility (as the applicant contends) then this case is one where independent judgment has been subordinated to decision-making by an auxiliary body that in reality makes decisions and does not simply assist in the decision-making. In short, the Director cannot “sub-contract” determinations that must, as a matter of law, be made by the HKSAR Government. The Scheme 24.It is convenient at this point to set out the relevant details of the Scheme including its history. As will be seen, it is not a statutory scheme but is instead to be found in an Executive Council memorandum and various subsequent public statements. It is also described, by reference to that memorandum and those public statements, in the affirmation of Ms Choy Bo Chun, Polly, Principal Assistant Secretary for Labour and Welfare (Welfare) 4. 25.Disability Allowance and Infirmity Allowance (now known as Old Age Allowance) were introduced in 1973 under the Disability and Infirmity Allowance Scheme, as the Scheme was originally known, following the approval of the Executive Council: see Memorandum For Executive Council No. XCC(73)5 (“the Exco Memo”). There are two types of Disability Allowance, namely NDA and Higher Disability Allowance. 26.The Scheme was introduced to complement the public assistance scheme, which aimed to provide a guaranteed level of income for the poorest members of the community. The public assistance scheme was replaced by the Comprehensive Social Security Assistance (“CSSA”) Scheme in 1993. The Scheme serves to channel additional financial help to vulnerable groups in the community such as the elderly and the severely disabled. 27.At the time of the hearing below, the rate of NDA was $1,280 per month to severely disabled persons. As from 1 February 2011, the rate has been revised upwards to $1,325 per month. The Higher Disability Allowance was $2,560 per month and, since 1 February 2011, this was revised to $2,650 per month. 28.On the evidence before the Judge, expenditure on the Scheme amounted to approximately $8.9 billion in 2010-11, of which $2.6 billion was Disability Allowance expenditure. At the end of August 2010, there were about 130,000 recipients of Disability Allowance, of which 114,000 were on NDA. We were informed that the final expenditure on the Scheme for 2010-11 was approximately $9.1 billion, of which $2.6 billion was Disability Allowance expenditure and that, as at the end of April 2011, there were about 135,000 recipients of Disability Allowance, of which 118,000 were on NDA. 29.The Exco Memo set out the policy reasons for the introduction of the new allowances in these terms:
30.An applicant must, amongst other things (which are not relevant to the present appeal), be assessed to be “severely disabled”. Whether someone is severely disabled for the purposes of Disability Allowance depends on whether he is medically certified as falling into one of the following specially defined categories, namely: (a) Disabling Physical Condition or Blind, (b) Disabling Mental Condition, or (c) Profoundly Deaf. In the present case, we are only concerned with (a), as it is not suggested the applicant is severely disabled under either (b) or (c). 31.Under the Scheme, a person is regarded as being severely disabled if he is certified by the Director of Health or the Chief Executive, Hospital Authority (or, under exceptional circumstances, by a registered medical practitioner of a private hospital) as being in a position broadly equivalent to a person with a “100% loss of earning capacity” according to the criteria in the First Schedule to the Employees’ Compensation Ordinance, Cap. 282, namely:
32.Annex A to the Exco Memo, entitled “Eligibility for Disability and Infirmity Allowance” stated materially:
33.So far as responsibility for the decision whether to grant Disability Allowance is concerned, Annex D to the Exco Memo was entitled “Machinery of Administration” and stated materially:
34.The SWD has published a pamphlet dated August 2008 to publicise the Scheme. This describes eligibility for NDA in the following terms:
35.On 5 November 2008, the Secretary for Labour and Welfare replied to a question in Legco on disability allowance under the Scheme, in the following terms (as published in a Government press release of the same date):
36.The eligibility requirements set out in Annex A of the Exco Memo and the SWD pamphlet dated August 2008 are also set out in the Medical Assessment Form, which is completed by the relevant medical officer conducting the medical assessment. 37.The Medical Assessment Form includes a “Checklist for Medical Assessment of Eligibility for Normal Disability Allowance for Disabilities other than Profound Deafness” (“the Checklist”). It will be necessary to return to this in due course since it features prominently in the applicant’s arguments on this appeal. The Checklist, which was apparently introduced in October 1994[1], states:
The appeal scheme 38.In the event an applicant is dissatisfied with a decision by the Director, he can appeal to the SSAB. 39.The role of the SSAB is described in a pamphlet published by the SWD entitled “A Guide to Social Security Appeals”, in the following terms:
40.The appeal process was also described in the Government press release dated 5 November 2008, in which the Secretary for Labour and Welfare stated:
The proper interpretation of the Scheme 41.As reflected in the skeleton argument of Mr Philip Dykes SC, leading counsel for the applicant[2], the crux of the applicant’s case is that, “as a matter of public law, the Scheme requires there to be only one decision-maker who can oversee the entire decision-making process or utilise a residual discretion to accommodate hard cases that do not fall neatly into the recognised categories.” 42.The correctness of the applicant’s case turns on the proper interpretation of the Scheme. 43.As to its proper construction, Mr Dykes submitted that the basic Scheme introduced by the Exco Memo had evolved into a scheme which involved consideration of other matters, namely the matters set out in Part II of the Checklist, which were non-medical matters that raised instead economic and social considerations. 44.Those matters were not matters which medical officers were qualified to evaluate and, in this regard, Mr Dykes referred to the evidence of Dr She Tat Ming, Paul, the former president of the Hong Kong Public Doctors’ Association. Dr She stated that the assessments called for by Part II of the Checklist were not assessments which medical doctors were able to make. He endorsed the Ombudsman’s views, in the Direct Investigation Report, that (a) medical doctors should not and could not assess other factors affecting an application for NDA such as the applicant’s employment needs and other environmental and social factors and (b) in case where the applicant’s disability is assessed to be less than 100%, SWD “might need to take into consideration other factors to determine whether DA should be granted”. 45.Mr Dykes also referred to the evidence of the doctors who conducted the actual medical assessments of the applicant in respect of his application for NDA and appeal to the SSAB, which was to the effect that their assessments of the applicant were limited to medical assessments only. 46.Thus, submitted Mr Dykes, the assessment of eligibility for NDA should consist of a visit to a doctor for a medical assessment and to a social worker for an assessment of the applicant’s economic and social needs, as reflected in Part II of the Checklist. The latter assessment therefore required the Director to determine whether, by reference to those criteria, the applicant should qualify for NDA even if he was not certified by a medical doctor to be severely disabled. 47.However, as noted in De Smith’s Judicial Review (6th Ed.) at §5-003:
The Scheme being non-statutory, it falls to construe the Scheme as a policy enunciated in the Exco Memo and the other public statements concerning it. 48.When one comes to look at the policy by which the Director grants NDA, it is abundantly clear that the Scheme involves a clear division of labour between the Director and the relevant medical doctors, with the assessment of whether an applicant is severely disabled for the purposes of the Scheme being a matter for the medical doctors to certify. 49.This is the case whether one considers the Exco Memo by which the policy was introduced (see especially the extract of Annex D quoted above) or the Scheme as presently publicised in the SWD’s August 2008 pamphlet and the Government press release dated 5 November 2008 (see the respective extracts quoted above). 50.It is also consistent with the internal “Social Security Manual of Procedure – SSA Scheme”, paragraph S71 of which provides:
51.As the latter part of the extract quoted above makes clear, even in doubtful cases, the role of the SWD is to clarify the medical assessment and not to override it. 52.As to the Checklist, Mr Anderson Chow SC, leading counsel for the respondents,[3] submitted that this is for use by medical officers carrying out medical assessments under the Scheme, not by an applicant, and is formulated by the SWD in consultation with the Hospital Authority and the Department of Health. It is not intended to and does not enlarge the eligibility criteria for NDA, the scope of which is set out in the Exco Memo and the SWD pamphlet. Part II of the Checklist is only relevant when consideration is given to “(viii) any other conditions including visceral diseases resulting in total disablement” and thus indicates that the focus remains on whether, medically, an applicant’s disability amounts to total disablement. In Part II itself, the emphasis is on the “applicant’s physical/mental impairments or other medical conditions” and whether, upon a “medical assessment”, such conditions or impairments lead to the results enumerated in sub-paragraphs (1) to (4). 53.I accept these submissions and, in my opinion, the applicant’s case makes too much of the Checklist. It is not a document which is directed to the public or the purpose of which is to publicise the eligibility criteria for NDA generally. In short, contrary to the applicant’s contention, the Checklist is not part of the policy. In paragraph 40 of the Judgment, with which I respectfully agree, the Judge held:
54.Under the policy, properly construed, the Director does not have responsibility for assessing whether an applicant for NDA is severely disabled for the purposes of the Scheme. That responsibility rests with the doctors of the Department of Health or the Hospital Authority who will certify whether or not the applicant is severely disabled or not. Based on the relevant medical officer’s assessment that the applicant is severely disabled, the Director will decide whether NDA should be granted having regard to various other non-medical requirements (not in issue in this case), such as residence. 55.Similarly, in the event of an appeal in respect of NDA where the issue is whether the applicant is severely disabled, the Medical Assessment Board will determine that question and advise the SSAB. 56.In the present case, the doctor who completed the Medical Assessment Form in respect of the applicant, Dr Pang Chun Hong, confirmed that his assessment of the applicant’s eligibility for NDA was based on his medical records and his observation of the applicant and that, in assessing eligibility for NDA, he would focus on the functional disabilities of patients rather than considering the patient’s age or education background. As for the appeal to the SSAB, the doctor who chaired the Medical Assessment Board, Dr Pak Chi Shing, confirmed that the Board’s assessment of the applicant was conducted with due consideration of both Parts I and II of the Checklist. The respective conclusions of Dr Pang and the Board were that the applicant was not severely disabled within the Scheme. In accordance with the policy, properly construed, that meant that the applicant was not eligible for NDA. 57.In the circumstances, there is no question, in my judgment, of the Director or the SSAB having unlawfully delegated their powers to the medical officers or having acted under their dictation, as the applicant contends. In the present context, there is no legal bar to this policy being structured so that different persons are responsible for different aspects of eligibility for a particular social welfare benefit. Other arguments 58.In his oral submissions, Mr Dykes did not develop the other submissions contained in the applicant’s skeleton, based on provisions of the Basic Law, the role of the Director as the vote controller of public monies allocated for social welfare, the lack of vires on the part of the Hospital Authority and cases concerning the prohibition against subordinating independent judgment to decision-making by an auxiliary body. 59.Mr Dykes acknowledged that this appeal turns on the proper construction of the policy. The principal argument relied on in his oral submissions was the Checklist, which I have addressed above. He relied on the other submissions in his skeleton by way of support for his principal submission as to the construction of the policy. 60.I can deal with these other arguments shortly. None of them, in my opinion, compels the conclusion that the proper construction of the policy is otherwise than as I (and the Judge below) have held it to be. 61.As to the Basic Law provisions relied upon, namely Articles 36, 59, 60, 62 and 145, none of these impose any duty on the Director to formulate policies in relation to social welfare. Instead, any duties imposed are those of the Government, which, through the Executive Council, has formulated the Scheme. The Director is simply the agent of the Government for the purpose of implementing the Scheme as properly construed. None of the provisions relied upon require the policy to be construed in such a way that the Director rather than the specified medical officers are responsible for determining whether an applicant is severely disabled within the meaning of the Scheme. 62.The fact that the Director is the vote controller of public monies allocated for social welfare cannot require the policy to be construed so as to shift responsibility for the medical assessment of whether an applicant for NDA is severely disabled from the specified medical officers to the Director. 63.The suggestion that it is outside the Hospital Authority’s vires to carry out medical assessments for the purpose of the Scheme is, as the Judge held in paragraph 48 of the Judgment, outside the scope of this judicial review challenge. 64.Finally, the answer to the applicant’s reliance on Secretary for Security v Prabakar and the other cases cited in support of the proposition that the Director as decision-maker cannot surrender judgment to a third party, is that, under the policy, as properly construed, the Director does not surrender judgment or sub-contract any determination that is for the Director himself to make. The Director has ultimate responsibility for whether an applicant is entitled to NDA but he is enjoined, under the policy, to have regard to a medical assessment of an application by a medical officer. Therefore, the present case is not the same as the Secretary for Security’s omission to exercise independent judgment in Prabakar’s case. Miscellaneous matters 65.Mr Dykes did not advance the arguments based on discretion relied on below and so it is not necessary to address the other grounds of challenge contained in the Form 86A Notice. 66.The applicant is not challenging the lawfulness of the policy itself and so, as the Judge observed, rightly in my view, we must take the Scheme as we find it. If and insofar as the Scheme is thought to be lacking in some respect, including the deficiency identified by the Judge in paragraphs 52 and 53 of the Judgment, the court is not the appropriate venue (as the Judge noted in paragraph 30 of the Judgment) in which to argue how the Scheme might be improved. 67.Further, the fact that the Ombudsman found complaints in respect of the administration of the Scheme to be unsatisfactory and made recommendations as to how the Scheme might be improved does not affect the lawfulness of the decisions challenged in the present proceedings. However, in this regard, Ms Choy’s evidence is that, in response to the recommendations made by the Ombudsman, a review of the mechanism for implementing the Scheme is being undertaken with a view to making improvements. Disposition and costs 68.For these reasons, I would dismiss this appeal. 69.As to costs, I would make an order nisi that the applicant do pay the respondents’ costs of the appeal, to be taxed if not agreed, with a certificate for two counsel. The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations. Hon Chu JA: 70.I agree and have nothing to add.
Mr Philip Dykes SC and Mr Hectar Pun, instructed by Messrs Peter K.H. Wong & Co. assigned by Director of Legal Aid, for the Applicant/Appellant Mr Anderson Chow SC and Mr Abraham Chan, instructed by the Department of Justice, for the Respondents/Respondents |
Cases cited in this judgment