Ali-Ahmad and Secretary, Department of Social Services (Social services second review)
[2019] AATA 172
•18 February 2019
Ali-Ahmad and Secretary, Department of Social Services (Social services second review) [2019] AATA 172 (18 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4987
Re:Malake Ali-Ahmad
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:18 February 2019
Place:Sydney
The decision under review is affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – entitlement to carer payments - whether Applicant was qualified under s 198 of the Social Security Act to receive carer payments – care not provided at home of care-receiver – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 198
REASONS FOR DECISION
Professor R McCallum AO, Member
18 February 2019
INTRODUCTION
The Applicant, Ms Malake Ali-Ahmad lodged a claim for Carer payment on 23 December 2017. She sought Carer payment on the basis that she was caring for Mr Hikmat El-Boubli. In a medical report dated 19 December 2017, Dr Hamad stated that Mr Hikmat El-Boubli suffered from major depression, L5/5 disc budge, L5 nerve compression and chronic back pain.
Ms Malake Ali-Ahmad noted that she did not live with Mr Hikmat El-Boubli, but that she provided “personal care and attention” to him from 13 December 2017 for 7 days per week.
Ms Malake Ali-Ahmad lived in Chesterhill, while Mr Hikmat El-Boubli resided in Sadleir.
On 8 May 2018, the Department of Human Services which is better known as Centrelink, granted Ms Malake Ali-Ahmad Carer payment from 23 December 2017 to 17 March 2018. Payment was made from 13 December 2017 to 17 March 2018.
However, on 8 May 2018, Centrelink cancelled Ms Malake Ali-Ahmad’s carer payment from 18 March 2018. Centrelink did so because it asserted that Ms Malake Ali-Ahmad was no longer providing constant care to Mr Hikmat El-Boubli.
Ms Malake Ali-Ahmad sought review from an Authorised Review Officer (ARO), however, on 18 June 2018 the ARO affirmed Centrelink’s decision to cancel Ms Malake Ali-Ahmad’s carer payment.
Ms Malake Ali-Ahmad sought review from the Social Services and Child support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
On 6 August 2018, the AAT1 varied the decision of the ARO, deciding that Ms Malake Ali-Ahmad was not qualified to receive carer payment from 13 December 2017. This was because care of Mr Hikmat El-Boubli did not take place in his home.
Ms Malake Ali-Ahmad now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).
THE HEARING
Ms Malake Ali-Ahmad attended the hearing. She was accompanied by her father Mr Fayez Ali-Ahmad.
Mr Fayez Ali-Ahmad spoke to the Tribunal with the assistance of an interpreter in the Arabic Language.
Ms Malake Ali-Ahmad gave evidence by affirmation. I find that Ms Malake Ali-Ahmad did her best to assist the Tribunal.
THE ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal are as follows.
First, whether Ms Malake Ali-Ahmad was qualified to receive carer payment on 13 December 2017. Second, if she was so qualified, was Centrelink correct to cancel Ms Malake Ali-Ahmad’s carer payment from 18 March 2018.
If I find that Ms Malake Ali-Ahmad was not qualified to receive carer payment on 13 December 2017, it will not be necessary to examine whether the decision to cancel carer payment from 18 March 2018 was correct.
THE LEGISLATION
The relevant provisions dealing with carer allowance are to be found in the Social Security Act 1991 (Cth) (the SS Act).
In Ms Malake Ali-Ahmad’s circumstances, section 198 of the SS Act relevantly provides as follows:
198 Qualification—disabled adult or disabled adult and dependent child
A person is qualified for a carer payment if the requirements of this section are met.
…
Constant care for disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or
(ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
(d) a disabled adult and a dependent child of the adult (the care receivers), where:
(i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and
(ii) the child is aged under 16; and
(iii) if the child is aged 6 or more—carer allowance is payable for the child; and
(iv) section 197D does not apply in respect of the care receivers.
…
Care in home
(3) The care must be provided in a private residence that is the home of the care receiver or care receivers.
…
CONSIDERATION
In Ms Malake Ali-Ahmad’s circumstances, section 198 of the SS Act specifies three requirements which must be fulfilled before carer payment can be received.
First, pursuant to section 198(2) of the SS Act, Mr Hikmat El-Boubli must receive the threshold Adult Disability Assessment Tool (ADAT) and Health Professional Assessment (HPA) scores. The Respondent agrees that he does meet these scores.
The Adult Disability Assessment questionnaire which was completed by Mr Hikmat El-Boubli’s general practitioner, Dr Hamad is before the Tribunal. The ADAT and HPA scores were 27 and 29 respectively. Therefore, Ms Malake Ali-Ahmad fulfils the first requirement.
Second, pursuant to section 198(2) of the SS Act, Ms Malake Ali-Ahmad MUST PERSONALLY PROVIDE constant care.
Third, pursuant to section 198(3) of the SS Act, Ms Malake Ali-Ahmad must provide care in a private residence that is the home of Mr Hikmat El-Boubli.
The evidence before the Tribunal is that Ms Malake Ali-Ahmad did not care for Mr Hikmat El-Boubli in his home.
In a statutory declaration dated 30 July 2018, by Mr Fayez Ali-Ahmad who is Ms Malake’s Father, Mr Fayez Ali-Ahmad declared as follows:
Malake [Malake Ali-Ahmad] came to my place with Hikmat everyday and took care of Hikmat [Mr Hikmat El-Boubli] at my place 5 days a week …
In her evidence before the Tribunal, Ms Malake Ali-Ahmad said that she took care of Mr Hikmat El-Boubli at her father’s house.
As Ms Malake Ali-Ahmad did not comply with the third requirement of section 198 of the SS Act, she did not qualify for carer payment.
Therefore, it is not necessary to examine whether or not Ms Malake Ali-Ahmad PERSONALLY provided constant care to Mr Hikmat El-Boubli. It will be recalled that the provision of constant care is the second of the three requirements specified in section 198 of the SS Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 28 (twenty - eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 18 February 2019
Date(s) of hearing: 8 February 2019 Applicant: In person Solicitors for the Respondent: A Zinn, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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