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

This matter concerned an appeal by Ms Alhajal against the cancellation of her carer payment and carer allowance by the Secretary of the Department of Social Services. The central dispute revolved around whether Ms Alhajal qualified for these payments at the date of cancellation, specifically whether her husband, Mr Elali, required a certain level of care and whether Ms Alhajal provided constant care. The decision was made by J F Toohey SM.

The court was required to determine two primary legal issues: first, whether Mr Elali had the requisite level of care needs to qualify Ms Alhajal for a carer payment, and second, whether Ms Alhajal provided "constant care" to Mr Elali at the time her payments were cancelled. The court also considered the reliability of the evidence presented regarding Mr Elali's care needs.

The court found that the information provided by Ms Alhajal regarding Mr Elali's need for care was not sufficiently reliable. Consequently, the court was not satisfied that Mr Elali met the minimum score of 25 required for Ms Alhajal to qualify for a carer payment, nor was it satisfied that Ms Alhajal provided constant care. The court interpreted "constant care" by reference to the Guide to Social Security Law, which indicates care provided on a daily basis for a significant period, equivalent to a normal working day, and that the carer's presence must be necessary due to the care receiver's medical conditions.

Ultimately, the decision to cancel Ms Alhajal's carer payment was affirmed. However, the decision to cancel her carer allowance was set aside and remitted for reconsideration. This was because the basis for the cancellation of the carer allowance was unclear, and the court did not have sufficient information to determine Mr Elali's rating under the relevant assessment tool. The Secretary was directed to determine Mr Elali's rating at the date of cancellation to reassess the appropriateness of the carer allowance cancellation.