Asad and Secretary, Department of Social Services (Social services second review)
[2023] AATA 1600
•13 June 2023
Asad and Secretary, Department of Social Services (Social services second review) [2023] AATA 1600 (13 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/7115
Re:Abdullah Asad
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:13 June 2023
Place:Sydney
The decision under review is affirmed.
................................[SGD]........................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – carer payment (CP) – whether the applicant provided ‘constant care’ such that he would be eligible for CP – relevant law and material considered – relevant policy considered – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
James and Secretary, Department of Social Services [2014] AATA 802
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Senior Member A Poljak
13 June 2023
1.Abdullah Asad, the applicant, seeks review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division (SSCSD) dated, 26 July 2022 which affirmed the decision of a Services Australia Authorised Review Officer (ARO) made on 6 April 2022 to reject the applicant’s carer payment (CP) claim lodged on 20 October 2021.
Issues
The issue to be determined is whether the applicant qualified for CP at the date of claim, 20 October 2021, or within 13 weeks of the date of claim, that is by 19 January 2022 (relevant period); Schedule 2 of the Social Security (Administration) Act 1999 (Cth). In determining this issue, I must consider whether:
(a)as at the date of claim, 20 October 2021, the applicant was qualified for CP in respect to the care he provided to the care receiver;
(b)the applicant’s father the care receiver met the Adult Disability Assessment Tool (ADAT) score of at least 25, including a score of at least 10 from the professional questionnaire component of the ADAT; and
(c)the applicant personally provides ‘constant care’ for his father in accordance with section 198 of the Social Security Act 1991 (Cth) (Act), as informed by relevant case law noted below, together with relevant policy contained in the Social Security Guide (the Guide).
Consideration
The applicant’s father is the care receiver and has chronic right knee pain and osteoarthritis secondary to a previous work injury, lumbar pain, neck and shoulder girdle pain and depression. It is accepted that the care receiver met the ADAT score of at least 25, including a score of at least 10 from the professional questionnaire component of the ADAT.
This then leaves the question of the care provided by the applicant during the relevant period and whether the applicant provided constant care to the care receiver.
The term ‘constant care’ is not defined within the legislation. However, the Guide provides assistance regarding the meaning to be given to ‘constant care’. Although the Tribunal is not bound by departmental policy guidelines, the Tribunal will ordinarily apply relevant policy unless there are cogent reasons not to do so (ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645).
Relevantly, the Guide provides at Instruction 1.1.C.310:
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 CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where 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 hour period is such that it roughly equates to a normal working day.
The nature of the care provided to the care receiver during the relevant period is also relevant when considering the issue of constant care. Specifically, domestic duties such as cooking, cleaning, attending to the laundry, assisting with transport to appointments, managing the household, domestic maintenance and repairs, and the like, are not of the nature of duties which satisfy the requirement that constant care is provided. While the activities may be time consuming, they do not require the constant presence of a care giver. See: James and Secretary, Department of Social Services [2014] AATA 802 and Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689.
The medical report by Dr Selim dated 21 October 2021, stated that the care receiver required minor help with transferring from a bed to a chair and back, needed help with climbing stairs, was dependent on others with bathing and sometimes showed signs of depression, memory loss, withdrawal from social contact and sometimes displayed aggression.
The applicant said he cared for the care receiver before and after school, and, on the weekends. His mother cares for the care receiver while the applicant is at school. The care provided by the applicant is detailed in a Social Work Assessment dated 4 November 2021. In summary, the assessment records:
… he stated that he does chores at home, helps his father with what he needs, he provides personal care (putting on clothes, regular massages, clipping toenails), he stated that he sometimes helps with the showering. He also stated that he accompanies his father to GP, physio and Chiro appointments. He stated that he reminds his father to take his vitamins. Abdullah stated that while he is in school his mother provides care for his father. He stated that he prepares breakfast for his father, but when it comes to lunch and dinner his mother prepares those meals …
At hearing, the applicant agreed with the summary contained in the Social Work Assessment. He said his father could drive and his brother assisted sometimes. On a typical day during the relevant period, the applicant said in the morning he would wake up the care receiver, help with dressing and toileting and cook breakfast for himself and the care receiver. However, the applicant did agree that the care receiver was independent when it came to feeding, toileting, dressing and bathing. This is consistent with the medical requirements listed in the medical report of Dr Selim.
From 20 October 2021, the applicant was a full-time grade 11 high school student. At hearing, the applicant explained that he actually started year 12 in late 2021 and had his HSC exams in October/November 2022. The applicant was enrolled and completed five subjects, namely economics, maths, English, Arabic and environmental science. During the relevant period, the applicant had a six-week Christmas holiday period.
There is some inconsistency in the hours of study at school the applicant undertook during the relevant period. In the claim form submitted on 20 October 2021, the applicant reported 23 hours of study at school and 50 minutes of travel per week. He later stated that he attended school for 19 to 20 hours per week with travel to and from school taking 15 minutes a day. Before the SSCSD, the applicant gave oral evidence that he spent 27 hours per week at school.
In a record of a conversation with the ARO and the applicant on 5 April 2022, the following is recorded in the notes:
I advised the customer that I was able to successfully contact their school and confirm the start and end times of each day and based on the information provided it was confirmed that the customer is participating in more than 25 hours per week of study including travel time to and from home to school. I advised that I had taken into consideration that the school had advised that when a student has a ‘free’ period at Period 5 they are able to leave the school for the day. They advised all other times the student is required to be at the school. I asked the customer if they had an agreement with the school to leave early or be at school for shortened periods of times due to caring responsibilities and the customer stated they did not.
In evidence is the applicant’s school timetable during the relevant period. Also in evidence is details from the school about the timing of a typical school day. At hearing, the applicant explained that he completed all of his study and assessment requirements at school during his free periods and did not do any study at home. He said on he had 10 free periods every fortnight. The applicant said he did not participate in any extracurricular activities, sporting activities or tutoring outside of school and had a very limited social life.
While the applicant claims to have completed his study requirements during his free periods at school, it is expected that senior high school study would demand a degree of homework that exceeds the spare periods described.
Having considered the available evidence, it appears that the applicant undertook education during the relevant period for more than 25 hours per week which would preclude eligibility for carer payment in the event of a temporary cessation of care pursuant to subsection 198AC(4) of the Act.
The applicant’s care activities during the relevant period appear to be episodic rather than constant. The care provided is largely domestic in nature and done at the applicant’s convenience. As already stated, when the applicant was at school, his mother provided care to the care receiver. Having regard to the nature of the care activities and the applicant’s school commitments, I am not satisfied that the applicant provided ‘constant care’ for the care receiver during the relevant period as required by subsection 198(2) of the Act.
Decision
The decision under review is affirmed.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
..................................[SGD]......................................
Associate
Dated: 13 June 2023
Date(s) of hearing: 1 June 2023 Applicant: Self-Represented Solicitor for the Respondent: Ms S Navaratnam, Services Australia
0
2
0