Al Kursan and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1225

Al Kursan and Secretary, Department of Social Services (Social services second review) [2017] AATA 1225 (8 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3149

Re:Tahsen Al Kursan

APPLICANT

Secretary, Department of Social Services And  

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:8 August 2017

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Member K. Parker

Social Security – cancellation of carer payment – whether eligible to receive carer payment – whether constant care was provided – care recipient working in home business

Legislation

Social Security Act 1991 (Cth) s 198(2)

Cases

Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582

James and Secretary, Department of Social Services [2014] AATA 802

Secondary Materials

The Guide to Social Security Law, clause 1.1C.310

REASONS FOR DECISION

Member K. Parker

8 August 2017

1. On 25 October 2012, the Department of Social Services (Department) granted Mr Tahsen Al Kursan carer payment under the Social Security Act 1991 (Act) with respect to the provision of care to his wife, Mrs Sara Al Hilfi. 

2. Mrs Al Hilfi informed the Department that she commenced trading as a family day care business on 27 May 2013.  The Department cancelled Mr Al Kursan’s carer payment on 15 October 2015 after finding that he did not satisfy s 198(2) of the Act.

3. Mr Al Kursan sought a review of that decision by an Authorised Review Officer (ARO) of the Department who affirmed the decision to cancel his carer payment on 22 February 2016.   Mr Al Kursan sought a review of the ARO’s decision by the Social Security and Child Support Division of this Tribunal (AAT1).  On 16 May 2016, the AAT1 affirmed the decision to cancel Mr Al Kursan’s carer payment. 

4. On 14 June 2016, Mr Al Kursan sought review by this Tribunal of the AAT1’s decision.  For the reasons set out below, this Tribunal is not satisfied that Mr Al Kursan provided constant care for his wife as at 15 October 2015 and did not qualify for carer payment under s 198(2) of the Act.  Accordingly, this Tribunal affirms the decision under review.

   LEGISLATION

5. The laws establishing eligibility to receive carer payment are set out in ss 197 and 198 of the Act.  Relevant to this application, s 198 of the Act provides that the person claiming carer payment must personally provide constant care for the care receiver in a private residence that is the home of the care receiver.

   THE FACTS

6. Mr Al Kursan has lived in Australia from 22 March 2001 until the present time. Before living in Australia, Mr Al Kursan lived in Iraq, Jordan and the Syrian Arab Republic.  At the hearing, Mr Al Kursan gave evidence with the assistance of an Arabic interpreter. 

7. Mr Al Kursan, aged 38, lives with his wife, Mrs Al Hilfi, aged 37, in a private residence in Shepparton, Victoria.[1]

   [1] Refer T-Documents lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 – T4/19.

8. On 2 October 2012, Dr Bassam Jallo (provider number 4522841A) completed a Centrelink form describing Mrs Al Hilfi’s disability and/or medical condition(s) at that time as follows:  “Rt Shoulder bursitis, varicose veins, hypotension and Rt De Quervains tenosynovitis”.[2]   When answering pro-forma questions, Dr Jallo stated that Mrs Al Hilfi required help on a daily basis to carry out routine personal activities or because she may be at risk to herself or others and that care was required for a significant period each day (at least the equivalent of a normal working day).  Dr Jallo stated that Mrs Al Hilfi’s condition was expected to continue for between 6 to 12 months.[3]  Dr Jallo listed Mrs Al Hilfi’s day to day needs as follows:[4]

   [2]           Refer T-Documents T4/20.

   [3]           Refer T-Documents T4/21.

   [4]           Refer T-Documents T4/22 & 23.

   (a)Bladder: Continent;

   (b)Grooming: Needs help with person care – face, hair and teeth;

   (c)Toilet Use: Needs some help but can do some things alone;

   (d)Feeding:  Needs help in cutting, spreading butter etc;

   (e)Transfer from bed to chair and back: Independent;

   (f)Mobility: Independent;

   (g)Dressing: Needs help but can do about half unaided;

   (h)Stairs: Independent up and down;

   (i)Bathing: Independent;

   (j)Cognitive Impairment:  No.

9. When the Department granted the carer payment to Mr Al Kursan on 25 October 2012, he was notified of the requirement to advise the Department of any change in circumstances within 14 days including if:

   (a)He no longer provided care for Mrs Al Hilfi;

   (b)Mrs Al Hilfi no longer required care on a daily basis for a significant period;

   (c)Mrs Al Hilfi no longer had a disability due to an improvement in health; or

   (d)He or Mrs Al Hilfi’s gross income changed.[5]

   [5]           Refer T-Documents T27/136 & 137.

10. Between 13 August 2013 and 12 October 2015, the Department issued a further 20 notices to this effect to Mr Al Kursan.[6]

    [6]           Refer T-Documents T27/139 – 206.

11. In June 2013, Mrs Al Hilfi provided information to Centrelink in the form of a Profit and Loss Statement for a sole trader child care service business trading under the name “Bright Future Family Day Care”.[7]  The period of statement was recorded by Mrs Al Hilfi as 7 May 2013 to 30 June 2013, during which time the “gross income for the period of statement” received was recorded as $5,770.[8]

    [7]           Refer T-Documents T5.

    [8]           Refer T-Documents T5/28.

12. On 2 September 2015, a further MOD F form was lodged with Centrelink by Mrs Al Hilfi referrable to her “Bright Future Family Day Care” business.  Mrs Al Hilfi listed on this form the type of duties performed and the number of hours spent each week on those duties (totalling 57 hours per week), as follows:

    (a)Child care:  40

    (b)Timesheet & Paperwork:                   10

    (c)Bookkeeping:  2

    (d)Purchase Materials & Supplies          5

13. An undated “FDC Questionnaire” stated that the business started on 7 May 2013 and that there were five children in care; three school-aged children aged 10, 8 and 6 who were cared for six days per week (two hours in the morning, five hours in the afternoon and from 8am until 8pm on Saturdays) and two younger children aged 2 and 4 who were cared for from 8.30am until 5pm five days per week.[9]  A further undated “Family Day Care Internal Questionnaire” stated that food was provided for the children in Mrs Al Hilfi’s care and where relevant, the children were driven to and from school.[10]

    [9]           Refer T-Documents T25.

    [10]          Refer T-Documents T26.

14. In her tax returns as provided in the T-Documents, Mrs Al Hilfi declared as follows:[11]

    [11]          Refer T-Documents T26.

2012/2013 tax return	Business income for child care services:     $5,770	List of “materials and supplies” provided stated that $14,325 had been spent on “food” and $5,129 for “grocery for FDC”.
2013/2014 tax return	Business income for child care services:      $60,332	In the list of expenses on page 7, Mrs Al Hilfi has claimed a deduction of $25,675 for “materials and supplies”.
2014/2015 tax return	Business income for child care services:   $51,952	In the list of expenses on page 8, Mrs Al Hilfi has claimed a deduction of $37,190 for “all other expenses”.

1. On 8 October 2014, Dr Jallo submitted a further medical report to Centrelink which stated that at that time, Mrs Al Hilfi had “diabetes, iron deficiency, rotator cuff tear, varicose veins, and lumbar osteoarthritis” for which she required help on a daily basis.[12]  However, on this report, Dr Jallo stated that he was “not sure” whether Mrs Al Hilfi required care for a significant period each day (at least to the equivalent of a normal working day).  Dr Jallo described the disability/medical condition(s) as “permanent”, while also stating that her condition was likely to “improve”.[13]

   [12]          Refer T-Documents T9/48.

   [13]          Refer T-Documents T9/49.

2. Dr Jallo listed Mrs Al Hilfi’s day to day needs as follows:[14]

   [14]          Refer T-Documents T9/50 & 51.

   (a)Bowels: (remained)[15] Continent;

   [15]          By comparison to Dr Jallo’s earlier medical report – see paragraph 8.

   (b)Bladder: (remained) Continent;

   (c)Grooming:  (upgraded to) Independent (implements provided);

   (d)Toilet Use:  (downgraded to) Dependant;

   (e)Feeding:  (remained) Needs help in cutting, spreading butter etc;

   (f)Transfer from bed to chair and back: (downgraded to) Minor help (verbal or physical);

   (g)Mobility: (remained) Independent;

   (h)Dressing: (remained) Needs help but can do about half unaided;

   (i)Stairs: (downgraded to) Needs help (verbal, physical, carrying aid);

   (j)Bathing: (remained) Independent;

   (k)Cognitive Impairment:  (remained) No.

3. Mr Al Kursan completed a “Review of Care Provided” form and lodged it with Centrelink on 13 October 2014.  In this form, he stated that he cared for his wife seven days per week and that her day to day needs were that she:[16]

   [16]          Refer T-Documents T10.

   (a)Moved around the house and to and from bed, chair etc. without help;

   (b)Never fell over indoors or outdoors;

   (c)Often had difficulty hearing or seeing others;

   (d)Always needed help or attention during the night;

   (e)Often had loss of bladder and/or bowel control but did not use continence aids;

   (f)Used the toilet without help;

   (g)Ate her food, showered or bathed, dressed and groomed herself with a lot of help;

   (h)Took care of her own medication with a lot of help; and

   (i)Did not have treatment.

4. Mr Al Kursan stated in this form that the amount of care he provided to his wife had not changed (i.e. had not decreased nor had he started sharing that care with anyone else).  When answering the question on the form about whether he provided “constant care for his wife”, Mr Al Kursan did not answer “yes” or “no” but instead marked a “?” next to these two selections.

5. A further Family Day Care Questionnaire was completed on 16 April 2015 stating that Mrs Al Hilfi cared for four children at that time in her family day care business; one baby aged five months for whom she cared 50 hours per week and three school aged children aged 8, 10 and 11 years for whom she cared five hours per day (or 30 hours per week).  It was also stated that the school-aged children were driven to and from school and that food was provided for the children in her care.[17]

   [17]          Refer T-Documents T11.

6. On 15 October 2015, Centrelink issued a letter cancelling Mr Al Kursan’s care payment for the stated reason that he no longer provided constant care to his wife.[18]

   [18]          Refer T-Documents T16.

7. At the hearing, Mr Al Kursan gave further evidence that, as at 15 October 2015, the type of care he provided to his wife included the following:

   (a)He accompanied her to follow up appointments at the doctors and at the hospital;

   (b)He helped her to go to the toilet;

   (c)He helped her with the driving;

   (d)He helped her with the cleaning, arrangements of the beds and cooking. 

8. When Mr Al Kursan was asked how his wife was able to manage to care for a number of children on a day to day basis in light of her disability and medical conditions, he said that it was “simple” as the children were “not young kids”.  He said they were school-aged children so there was “no cooking”.  He said the children were aged 8, 11 and 12 and they were only in their care after school from 3.30pm to 7pm. He said it was not difficult to care for them.  He said that sometimes both he and his wife would go to the park to play with the children. 

   ISSUES

9. The issue in this case with whether Mr Al Kursan provided “constant care” for Mrs Al Hilfi within the meaning of s 198(2) of the Act as at 15 October 2015, being the date upon which the Department cancelled Mr Al Kursan’s carer payment. 

10. It was not contended by the Department that Mr Al Kursan otherwise failed to satisfy the requirements of s 198(2) on account of any absence of Mrs Al Hilfi having been “assessed and rated under the Adult Disability Assessment Tool” at the required level.

    CONSIDERATION

11. The concept of constant care is not defined in s 198(2) of the Act. 

12. Clause 1.1.C.310 of The Guide to Social Security Law provides as follows:[19]

    Definition

    A carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. The care may be active, supervisory or monitoring.  To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing carer payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.  This includes circumstances whether the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hours period is such that it roughly equates to a normal working day…

    [19]          The Guide to Social Security Law is not binding at law but the Tribunal will take it into consideration          provided it is not inconsistent with the legislative provisions dealing with the eligibility requirements        for a person to receive carer payment under the Act.

13. The Tribunal constituted by Senior Member Kenny in Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 noted that constant care was not expressed in terms of a specified number of hours.[20] This Tribunal also notes the observations of the Tribunal in James and Secretary, Department of Social Services [2014] AATA 802 recognising that what constitutes constant care would vary from case to case depending on the medical needs of the care receiver but there was a common element to it being that the care was needed on “more or less a continuous basis”. The Tribunal stated in that case that the care giver would not qualify for carer payment if the needs of the care recipient were flexible enough so as to allow the carer to engage in substantive employment or study.[21]

    [20]          Re Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 at [19].

    [21]          ReJames and Secretary, Department of Social Services [2014] AATA 802 at [36].

14. The Tribunal considers that the medical evidence provided by Dr Jallo indicated that Mrs Al Hilfi’s day to day care needs at the time the carer payment was cancelled were not substantial. The evidence presented about Mrs Al Hilfi’s extensive involvement from May 2013 until October 2015 in her sole trader home-based child care service reflected that her day to day care needs during this period must not have been significant.  If they were, the Tribunal considers that it would have been difficult for Mrs Al Hilfi to maintain the operation of her business at this level for that sustained period of time as she did.  This was reinforced by the opinion expressed by Dr Jallo in his medical report issued in October 2014 where he opined that he was “not sure” whether Mrs Al Hilfi required daily care for a significant period each day.   The evidence provided indicated that for most of that period, Mrs Al Hilfi had a “full house” of children under her care (four or five), including school-aged children and at different times, infants and toddlers; the infants and toddlers, no doubt requiring a substantial degree of physical and constant care to be given by Mrs Al Hilfi as the sole trader of that business. 

15. The Tribunal does not accept the evidence given by Mr Al Kursan that it was “simple” and there was “no cooking” involved.  This evidence is entirely inconsistent with the substantial tax deductions that Mrs Al Hilfi has consistently claimed for food, groceries and other materials and supplies at varying times leading up to October 2015 as detailed in the table in paragraph 14 above.  It must follow from that evidence that a substantial degree of cooking was involved in running the home-based child care business for those tax deductions to have been made on a legitimate basis.  The span of hours during which the child care business was in operation (before, during and after school) also indicated that the care at Mrs Al Hilfi’s home coincided with meal times for those children. 

16. It was evident from the FDC questionnaires that food was provided for the children in Mrs Al Hilfi’s care and she was required to drive her car to complete school drop-offs and pick-ups each day for the school aged children in her care.

17. Mr Al Kursan also initially sought to downplay the number of hours that he said his wife provided care to those children.  He gave evidence on oath at the hearing that it was limited to three and half hours a day after school from 3.30pm to 7pm because she only cared for school-aged children.  The Tribunal does not accept this evidence.  Mr Al Kursan was questioned at the hearing about his wife’s declarations to the Department previously that she had worked in excess of 45 hours per week in the child care business, as also reflected by the substantial declared income derived from this business (as set out in the table in paragraph 14).  It was put to Mr Al Kursan that this did not seem to “add up” as 3.5 multiplied by 5 days was only 17.5 hours, which was a long way from the minimum of 45 hours per week as previously declared by his wife.  Mr Al Kursan did not have an explanation for this and instead changed his evidence to say that it was his wife’s business and for that reason, he could not tell the Tribunal how many hours of care were provided to the children each week. Mr Al Kursan said the Tribunal would need to ask that question of his wife. The Tribunal notes that Mr Al Kursan did not call his wife to give evidence in support of his application. 

18. Mr Al Kursan’s evidence as set out in paragraphs 21, 22 and 31 above, suggests that the daily activities that he undertook to provide care for his wife on account of the needs arising from her particular disability and medical conditions did not consume a substantial part of the day. The Tribunal finds that Mr Al Kursan provided no more than about one or two hours (at best) of care to his wife per day on account of her specific needs arising from her disability and medical conditions.  The Tribunal has not taken into account the time Mr Al Kursan appeared to have spent assisting his wife to run her home-based child care business as remuneration was already received by Mrs Al Hilfi, for that work output by Mr Al Kursan, from the Child Care agency through which those home-based services are provided as demonstrated by the financial information tendered by the Department in this application. 

19. The Tribunal has also declined to take into account the activities that Mr Al Kursan had been engaged in which could be considered part and parcel of the usual home duties that Mr Al Kursan should be expected to perform as a member of that household.  In this regard, the Tribunal notes and agrees with the observations made in the James case referred to above, as follows:[22]

    [35]Performing household domestic duties, cooking, cleaning, attending to the laundry and other similar activities are not of the nature of duties required to satisfy the requirement that constant care if provided…

    [22]          Re James and Secretary, Department of Social Services [2014] AATA 802 at [35].

20. Overall, the Tribunal is satisfied that most of the activities undertaken by Mr Al Kursan were not in fact directed at the special care needs of Mrs Al Hilfi arising from her disability and medical conditions.  In the main, they were connected with assisting in the operation of Mrs Al Hilfi’s home-based child care business or they constituted day to day household chores and the usual responsibilities associated with running a household, like paying bills and going on excursions with family members.  The Tribunal finds that to the extent that Mr Al Kursan engaged in activities that were directed at the specific care needs of Mrs Al Hilfi, for instance, helping her to go to the toilet at times she became unwell or helping her during the night if she required attention or at times, helping her with her grooming (although the medical evidence suggested assistance required with her grooming-related needs were minimal), those activities did not seem to take place on a more or less continuous basis, nor did they appear to consume a substantial degree of Mr Al Kursan’s time each day.  The Tribunal was satisfied that as at 15 October 2015, Mr Al Kursan did not engage in those daily care activities to help his wife, to the extent that they would have prevented him from engaging in substantive employment or studies outside the home should he have elected to have done so.

    CONCLUSION

1. For the reasons set out above, the Tribunal concludes that Mr Al Kursan did not provide constant care to Mrs Al Hilfi as at 15 October 2015.  Consequently, Mr Al Kursan did not qualify for carer payment under s 198(2) of the Act and the decision of the AAT1 on 16 May 2016 to affirm the decision of the ARO on 22 February 2016, to affirm the decision of the Department on 15 October 2015, to cancel his carer payment with respect to the care of his wife at that time, was correct and is affirmed by this Tribunal.

36.     I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Kim Parker, Member

[sgd]…..….................................................

Associate

Dated             8 August 2017

Date of hearing	5 May 2017
Applicant	By Telephone
Advocate for the Respondent	Mr James Henderson
Solicitors for the Respondent	Department of Human Services, Freedom of Information & Litigation Branch