LEE SHING LEUNG v. THE DIRECTOR OF SOCIAL WELFARE AND ANOTHER

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)

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BETWEEN

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J U D G M E N T

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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.

(1)  First, it was contended that the respective decisions of the Director and the SSAB were illegal in that the Director and SSAB either unlawfully delegated their powers to the medical officers who assessed the applicant or acted under their dictation.

(2)  Secondly, it was contended that the respective decisions of the Director and the SSAB were unlawful because they had unduly fettered the exercise of their discretion in following the assessments of the medical officers.

(3)  The third ground of challenge was that the Director and SSAB failed to take into account a relevant consideration, namely the fact that, due to his circumstances, the applicant fell within one or more of the categories in Part II of the Checklist in the Assessment Form for NDA.

(4)  Finally, it was contended that the decisions of the Director and SSAB were irrational because the applicant was clearly “severely disabled”.

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:

“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.”

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:

“The public assistance scheme at present provides one of the main measures of social security in Hong Kong. The scheme, which Government has undertaken to keep under regular review, provides a guaranteed level of income for the poorest members of the community. Now that the scheme is firmly established and it seems likely Hong Kong can afford to move further in this direction, it is possible to consider developing other measures of social security designed to provide Hong Kong with balanced social security suitable for its own particular needs.

2 This memorandum, after considering the possible choices available, recommends that as a further development of the social security system in Hong Kong a start should be made with allowances for the severely disabled and the elderly infirm, the latter being defined as those over 75. These are considered to be the most vulnerable groups in the community who, through no fault of their own, are least able to support themselves.

…

The needs of vulnerable groups

4 The public assistance scheme has provided a basic guaranteed level of income for those who are most in need. But a scheme of this kind based on family incomes does not provide an effective means of channelling additional help to those vulnerable groups in the community, such as the severely disabled, who need extra financial help but who are members of a family whose collective income takes them above the public assistance level.

5 The case for providing additional financial help to those in vulnerable groups is strong. In particular, the severely disabled, such as the bedridden or the crippled, usually have many more needs and demand much more attention than other members of the community of a similar age. While they are still members of the community at large, therefore, they place a considerable financial, physical and emotional strain on their families. The same is true, to a somewhat lesser extent, of the elderly infirm.

6 It is not practicable to provide sufficient help through changes in the public assistance scheme, since this is designed to provide an adequate income level for the family as a whole. A family may have to meet considerable extra expense because of a disabled family member but still fall outside the public assistance scheme as the family income is above the level eligible for assistance. In such cases, the family income may not be high enough to cover the extra expense without financial strain. Frequently the disabled family member himself will not be able to contribute anything to the family 'budget' in return.

7 The value of a new scheme of financial aid for the severely disabled and over 75's would thus be threefold:

(a) it would provide a new and effective means of giving some help to a family with the burden of caring for a family member;

(b) it would encourage families to continue coping with the burden and this would reduce the demand for institutional care which requires considerable financial and other community resources e. g. trained staff; and

(c) it would enable the beneficiary to make some contribution to the family 'budget' and so be less of a burden.”

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:

(1)  Loss of function of two limbs;

(2)  Loss of function of both hands or all fingers and both thumbs;

(3)  Loss of functions of both feet;

(4)  Total loss of sight;

(5)  Total paralysis (quadriplegia);

(6)  Paraplegia;

(7)  Illness, injury or deformity resulting in being bedridden; or

(8)  Any other conditions including visceral diseases resulting in total disablement.

32.  Annex A to the Exco Memo, entitled “Eligibility for Disability and Infirmity Allowance” stated materially:

“5. To be regarded as disabled or infirm within the meaning of the scheme, a person must fall into one of the categories set out below. The aim of the categories, as defined, is to cover all those who are severely disabled and as a result need substantial help from others to cope with daily life, even if they are able to do a paid job. (For this purpose, those who are in category (a) below are deemed to need this substantial help)

For disability allowance

(a) Physically injured or blind: a person who would be regarded by the Director of Medical and Health Services as being in a position broadly equivalent to a person with a 100% loss of earning capacity according to the criteria of the Workmen’s Compensation Scheme (First Schedule of Cap. 282):-

(i) Loss of two limbs

(ii) Loss of both hands or of all fingers and both thumbs

(iii) Loss of both feet

(iv) Total loss of sight, including the loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential

(v) Total paralysis

(vi) Injuries resulting in being bedridden

(vii) Any other injury causing total disablement

Note  For the purposes of the scheme, the element of ‘permanency’, which is in Cap. 282, has been excluded from (vi) and (vii)”

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:

“Responsibility for decision taking

3. Disability Allowances: Where it appears that there may be eligibility for a disability allowance, the case will be referred to the Director of Medical & Health Services, who will decide whether there is a disability within categories (a)-(d) of para. 5 of Annex A.

4. Where there is any medical doubt on whether a person is disabled within the meaning of the scheme, the case will be referred for advice to the Assessment Board set up to consider workmen’s compensation cases.

5. The Director of Medical & Health Services will then pass on his conclusions to the Director of Social Welfare who will decide whether the applicant satisfies the other condition for awarding an allowance.

6. The award and payment of the allowance will be a matter for the Director of Social Welfare.”

34.  The SWD has published a pamphlet dated August 2008 to publicise the Scheme.  This describes eligibility for NDA in the following terms:

“Normal Disability Allowance

• he/she 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) to be severely disabled (see definition of ‘severely disabled’ at Annex on page 7); and

• his/her disabling condition will persist for at least 6 months.

…

[Annex]

Definition of ‘Severely Disabled’

A person will be considered as severely disabled within the meaning of this Scheme if he/she 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 falling into one of the following categories:

(a)  Disabling Physical Condition or Blind

This means that a person is in a position broadly equivalent to a person with a 100% loss of earning capacity according to the criteria in the First Schedule of the Employees’ Compensation Ordinance (Cap. 282):

(1)  Loss of functions of two limbs

(2)  Loss of functions of both hands or all fingers and both thumbs

(3)  Loss of functions of both feet

(4)  Total loss of sight

(5)  Total paralysis (quadriplegia)

(6)  Paraplegia

(7)  Illness, injury or deformity resulting in being bedridden

(8)  Any other conditions including visceral diseases resulting in total disablement”.

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):

“ The Disability Allowance (DA) under the Social Security Allowance (SSA) Scheme includes Normal Disability Allowance (NDA) and Higher Disability Allowance (HDA). DA 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. An applicant is eligible for NDA if he/she is certified by the Director of Health or the Chief Executive of the Hospital Authority (HA) (or under exceptional circumstances by a registered medical practitioner of a private hospital) to be severely disabled and his/her disabling condition will persist for at least 6 months …

(a) Regarding the eligibility criteria for DA, it has been clearly specified that an applicant is considered to be "severely disabled" if he/she is certified by the Director of Health or the Chief Executive of the HA to be in a position broadly equivalent to a person with a 100% loss of earning capacity according to the criteria in the First Schedule of the Employees' Compensation Ordinance (Cap 282). We have to stress that at present, applicants of different disability categories can be eligible for DA if they are medically certified to fall within the definition of "severely disabled" under the DA.

(b) At present, to ensure consistency and objectivity in medical assessment, a medical practitioner will make assessments with reference to a standardised "Medical Assessment Form" and a professional medical checklist. The "Medical Assessment Form" sets out the eligibility criteria for DA, and the checklist is formulated by the HA and Department of Health for assessing disability. Medical practitioners will assess the degree of disability of DA applicants in accordance with the established criteria and guidelines along with their professional knowledge and judgment.

  We have since September 2006 adopted the revised checklist and Medical Assessment Form to spell out explicitly that "visceral disability" is also included in any other conditions resulting in total disablement.”

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:

“Eligibility criteria

Subject to other eligibility criteria being met, an applicant certified by the Director of Health or the Chief Executive, Hospital Authority as being 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) can be eligible for Normal Disability Allowance (NDA) under the Social Security Allowance Scheme.

…

Checklist for medical assessment of eligibility for NDA for disabilities other than profound deafness

(I) Applicants whose physical/mental impairments or medical conditions have fallen into one of the following categories (which have been defined as 100% loss of earning capacity in the First Schedule of Employees’ Compensation Ordinance (Cap. 282) are considered automatically eligible for NDA on medical grounds even though they have taken up employment :

(i) loss of functions of two limbs

(ii) loss of functions of both hands or all fingers and both thumbs

(iii) loss of functions of both feet

(iv) total loss of sight

(v) total paralysis (quadriplegia)

(vi) paraplegia

(vii) illness, injury or deformity resulting in being bed-ridden

(viii) any other conditions including visceral diseases resulting in total disablement (reference should be made to part (II) of the Checklist)

If the applicant’s disabling condition does not fall into any of the above categories, please proceed to (II) below.

(II) Where an applicant’s physical/mental impairments or other medical conditions have not fallen into any of the categories in (I) above, a medical assessment should be carried out to determine if the applicant is ‘severely disabled’ within the meaning of the scheme.

An applicant is considered in a position broadly equivalent to 100% loss of earning capacity and thus eligible for NDA if his/her physical or mental impairment or other medical conditions including visceral diseases, have resulted in a significant restriction or lack of ability or volition to perform the following activities in daily living to the extent that substantial help from others is required in any one of the following areas:

(1) working in the original occupation and performing any other kind of work for which he/she is suited;

(2) coping with self-care and personal hygiene including feeding, dressing, grooming, toileting and bathing;

(3) maintaining one’s posture and dynamic balance while standing or sitting, for daily activities, managing indoor transfer (bed/chair, floor/chair, toilet transfer), travelling to clinic, school, place and work; and

(4) expressing oneself, communicating and interacting with others including speaking, writing, utilizing social (community) resources, seeking help from others, and participating in recreational and social activities.” [underlining in original]

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:

“13. The Board will either confirm the decision appealed against or vary that decision provided that such a decision conforms to approved social security policy.

14. Except for appeals which require the decision of a medical assessment board, the Board will reach a decision on an appeal on the basis of the facts presented to the Board. Its decision on a particular case will not constitute a precedent either for the Director of Social Welfare or for other cases coming before the Board.

15. In respect of appeals which require the decision of a medical assessment board, the Board will give its decision on the basis of the decision of the medical assessment board.

16. The decision of the Board is final and the appellant has no further right of appeal. The Board, however, has the right to review its own decision when necessary.”

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:

“If any person is not satisfied with the decision of the Social Welfare Department (SWD) in respect of eligibility and payment of social security benefits, he/she may lodge an appeal to the Social Security Appeal Board (the Board). The Board is an independent body and its Chairman and Members are all non-officials appointed by the Chief Executive. For appeals involving the result of a medical assessment, the Board will arrange with the HA for the applicant to undergo a medical reassessment to be processed by the Medical Assessment Board (MAB) responsible for social security appeals. The MAB is an independent body and its members consist of a medical practitioner from the HA and two representatives from the Hong Kong Medical Association.”

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 (6^th Ed.) at §5-003:

“The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or statutory instrument, but it may also be an enunciated policy, and sometimes a prerogative or other ‘common law’ power.”

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:

“S71: Medical referral and medical certification

A. Medical certification

In considering payment for DA [Disability Allowance], medical certification of an applicant's disability is required. The authority to decide whether an applicant is regarded as 'severely disabled' within the meaning of the SSA Scheme or whether an applicant is in need of constant attendance for the purpose of HDA [Higher Disability Allowance] rests with:

• the Director of Health (D of Health); or

• the Chief Executive/Hospital Authority (CE/HA); or

• a registered private medical practitioner, under special circumstances (see paragraph S77).

…

G. Clarification of doubtful cases

In case where the information provided in the MAF [Medical Assessment Form] was in doubt or obviously self-contradictory and inconsistent (e.g. a customer is certified to be eligible for DA solely because of loss of one limb), clarification with the MSW [Medical Social Worker] or MO [Medical Officer] should be sought before authorization of payment.”

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:

“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.”

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.