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

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

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BETWEEN

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J U D G M E N T

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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:

“ 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.”

17.  Annex A (entitled “Eligibility for Disability and Infirmity Allowance”) to the Memorandum read:

“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)”

18.  Annex D to the Memorandum set out the “Machinery of Administration” of the disability allowance:

“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.”

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”,

“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.”

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:

“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”

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:

“   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.”

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,

“ 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.”

26.  According to the same press release referred to above, the Secretary for Labour and Welfare has explained:

“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.”

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:

“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.”

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 1^st 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.