Nurse with Guillain-Barré syndrome loses claim for disability grant

FORMER nurse Ruth Peters, who is paralysed from the neck down, with 90 per cent disability, has lost her legal challenge over her denial of a disability grant, because she is not considered “permanently disabled.”

In July 2018, Peters’s doctors diagnosed her with Guillain-Barré syndrome and her attorneys argued that the requirement that a person must be permanently disabled to receive a grant went against the Public Assistance Grant regulations and should be expunged.

Five Privy Council judges did not agree.

Lords Briggs, Sales, Hamblen, Burrows and Stephens were asked to determine if Parliament, by making changes to the wording of section 11A of the Public Assistance Act in 1998, removed the requirement that an individual had to be permanently disabled in order to be eligible for disability assistance benefits.

When the change was made, the legislation no longer referred to permanent disablement, but the public assistance regulation forms continued to say certification of permanent disablement was a condition of eligibility.

In dismissing Peters’s complaint, the judges held that the Court of Appeal’s interpretation that the current version of section 11A continued to require permanent disablement was correct.

“Section 11A(4) provides that an individual awarded disability assistance benefit ‘shall continue to receive such assistance’ unless and until certain specified events occur, which do not include ceasing to be disabled.

“The scheme of the legislation, therefore, envisages that once an award of disability assistance benefit is made, payment of the benefit is to continue subject only to the occurrence of one of the specified events.

“All this only makes sense if the award is in respect of disablement which is assessed to be permanent, rather than in relation to a medical condition which may fluctuate over time in its effect on the ability of the individual to earn their livelihood,” Sales, who wrote the decision, said.

He said when looking at the overall scheme of the benefits regime, it was not plausible that Parliament intended to override the practical application of public assistance regulation on disablement which is temporary.

“If that had been the intention, one would expect it to have been articulated with much greater clarity.”

The judges did admit that the amended law was unfortunately badly drafted.

"It can readily be seen that it was infelicitous drafting to remove from the 1998 version of section 11A(1)(d) the reference to permanent disablement which was in the 1996 version of that provision."

In 2019, Peters received permission from Justice Eleanor Honeywell-Donaldson to challenge a policy of the Ministry of Social Development and Family Services and the Central Public Assistance Board. Her claim for judicial review was successful at the High Court, but was overturned in the Court of Appeal. Peters then appealed to the Privy Council.

Guillain-Barré syndrome is a rare, serious auto-immune disorder in which the immune system attacks part of the peripheral nervous system and causes paralysis.

Peters said she tried to apply for a disability grant but was told to qualify for it, her medical report must say she was permanently disabled.

Her lawyers argued that she was certified as being 90 per cent disabled for a year, and although it had been explained to her that she might make a full recovery, she is unable to work.

When she was refused the disability assistance benefit, she was told to apply for public assistance benefits instead. Disability assistance benefit is paid at a higher rate.

The lawsuit contended that the ministry's policy that a person must be certified as being permanently disabled was illegal, as the Public Assistance Act only stipulates that the applicant must be “in the opinion of the local board so disabled that he is unable to earn a livelihood and has been certified by a medical officer as being so disabled.

“The clear intention of the Public Assistance Act is to provide financial assistance to persons who may be unable to work because of disability.

“The mandatory requirement for permanence is not contemplated by the said act and its imposition in the criteria is not in keeping with the intent and policy of the said act,” Peters’ lawsuit contended.

Peters was represented by King’s Counsel Anand Beharrylal, Sian McGibbon, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan. The State was represented by Robert Strang at the Privy Council.