Applicant and Comcare

[2011] AATA 209

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL      )           No  2010/3838

)                   2010/5394

GENERAL ADMINISTRATIVE DIVISION		)
Re		THE APPLICANT

Applicant

And  COMCARE

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 29 March 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

...................[SGD]...........................

Senior Member

CATCHWORDS

COMPENSATION — household services — painting — decision affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 4 and 29

Todd and Department of Defence [1993] AATA 295

Munn and Comcare [2005] AATA 1018

REASONS FOR DECISION

29 March 2011 Senior Member Bernard J McCabe

1. This case requires that I decide whether painting work carried out on the applicant’s home can be regarded as the provision of “household services” within the meaning of s 29 of the Safety, Rehabilitation and Compensation Act 1988.

2. There is no dispute that the applicant suffers from back and shoulder conditions that are work-related. Comcare has accepted liability and already meets a number of expenses for services that clearly fall within the definition of “household services” in s 4. There is also no dispute that the applicant:

(a) formerly did painting work of the kind envisaged here herself (ie she did not hire a contractor to perform the work for her); and

(b) is unable to do the work herself now because of her accepted conditions.

3.      I accept from the evidence in the T documents and the applicant’s remarks from the bar table that the door-frames, gutters and fences in question need a fresh coat of paint because they are scuffed and flaking. I also note the applicant proposes purchasing the paint herself. She just wants assistance with the labour costs.

4. The starting point of my analysis must be the words of the section in question, although one must be careful to read those words in the context of the Act as a whole. Section 29 authorises Comcare to make regular payments for household services. The definition of “household services” in s 4 says:

"household services", in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.

5. For the applicant to succeed, I must be satisfied that the services in question - painting work – are services of a domestic nature like the examples given in the definition. I must also be satisfied they are required for an appropriate purpose. The fact the applicant previously did that work herself is not relevant to the characterisation process (although that may be relevant to the question of whether the household services are reasonably required pursuant to s 29). I accept that the process requires distinctions that might on occasion be so subtle as to appear arbitrary, but that challenge does not excuse the decision-maker from forming a view.

6.      I do not think the painting services in question here are properly characterised as household services of a domestic nature. There is a subtle but discernible difference between painting work and the examples referred to in the definition. I think it is distinguishable from the core activities of any household like cooking, cleaning, washing and (where there is a garden) mowing.  I would add that I am not satisfied that the services are required for the proper maintenance of the household. While I accept the painting is not for decorative purposes, it is essentially an exercise in refurbishment rather than maintenance.

7. Mr Clark, for Comcare, said the fact that the section refers to regular payments tended to suggest that one-off expenses like painting were not intended to be covered by the Act. The applicant, for her part, points out that Comcare has paid a number of one-off expenses. She argues that one cannot make too much of the fact that s 29 appears to contemplate regular payments. I am inclined to agree with the applicant, but that does not change my conclusion which is derived from an analysis of the essential nature of the services in question.

8.      I was also referred to the Tribunal’s decisions in Todd and Department of Defence [1993] AATA 295 and Munn and Comcare [2005] AATA 1018. Both of those cases dealt with claims in respect of expenses associated with painting work. The applicants were unsuccessful in those cases. I have reached the same view here, although I think it is important to emphasise I have reached the result by looking at the section and the facts of the case rather than by automatically applying an approach adopted in earlier cases.

conclusion

9.      The reviewable decision is affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ...................[SGD]........................................................
  Kerri Smith, Associate

Date of Hearing  28 March 2011
Date of Decision  29 March 2011

Applicant  Self-Represented

Counsel for the Respondent          Mr Charles Clark
Solicitor for the Respondent          DIBBS BARKER