Bieman and Secretary, Department of Family and Community Services

[2005] AATA 615

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 615

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/365

GENERAL ADMINISTRATIVE DIVISION		)
Re		Geoffrey Bieman

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date29 June 2005

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

………………………………….

Ms N Isenberg,
  Member

CATCHWORDS

SOCIAL SECURITY - Applicants claim for a carer allowance – whether care receiver was assessed and rated correctly under the Adult Disability Assessment Tool

LEGISLATION

Social Security Act 1991 ss 954A, 38C
Assistance for Carers Legislation Amendment Act No 13 of 1999
Adult Disability Assessment Amendment Determination 1999 (No 1)

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("Centrelink") dated 22 November 2004 (T17) as affirmed by the Authorised Review Officer on 9 December 2004 (T21) and the Social Security Appeals Tribunal (“the SSAT") on 17 February 2005 (T2) to refuse the Applicant’s claim for a carer allowance.

BACKGROUND

1. Mr Bieman’s friend, Ms Doyle suffers from schizophrenia and Mr Bieman provides assistance to her.  He has applied for a carer allowance.

ISSUE BEFORE THE TRIBUNAL

1. Whether Mr Bieman qualifies for payment of carer allowance for the assistance he provides to Ms Doyle.

LEGISLATION

1. The relevant legislation in this matter is the Social Security Act 1991, in particular section 954A.

1. A person may be paid carer allowance in respect of care they provide to another adult, providing the criteria, in accordance with section 954A(1) of the Social Security Act 1991 (“the Act”), as follows, are met.

954A(1)  A person is qualified for carer allowance for a disabled adult (the care   receiver) if:
   (a)  the care receiver is an Australian resident; and
   (b)  the care receiver is a family member of the person or is a person approved                 in writing by the Secretary for the purposes of this paragraph; and
   (c)  the care receiver has been assessed and rated under the Adult Disability   Assessment Tool and given a score under that assessment tool of at least 30,                   being a score calculated on the basis of a professional questionnaire score of               at least 12; and
   (d)  the care receiver receives care and attention that meet the requirements in                subsection (2); and
   (e)  the person is an Australian resident; and
   (f)  the person’s work in providing the care and attention is not at award wages                 or above; and
   (g)  neither the person nor anyone else is qualified for carer allowance for the                    care receiver under section 954.

1. The Adult Disability Assessment Amendment Determination 1999 (No 1), devised under section 38C of the Act provides the rating method for determining a person’s qualification for carer allowance under section 954A(1)(c) by way of the ‘Adult Disability Assessment Tool’.

1. Part 2 of the determination provides for two questionnaires; a claimant questionnaire and a professional questionnaire.  Section 2.1 provides, among other things, that the claimant questionnaire be filled in by the carer allowance claimant and the professional questionnaire be completed by a treating health professional.  Section 2.2 provides that the test for assessing a person’s disability etc. is the assessment of the answers given in relation to the person in the claimant questionnaire and the professional questionnaire.

1. The professional questionnaire score must be at least 12, under subsection 954A(1)(c) of the Act, in order for a person to be qualified for carer allowance, and the total score must be at least 30.

1. In addition, subsection 954A(2) provides that the care and attention must address special care needs that the care receiver is assessed under the Adult Disability Assessment Tool as having; and that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life. The care must also be received by the care receiver on a daily basis for a total of at least 20 hours a week.  

THE HEARING

1. A hearing was held before me on 17 June 2005 at which Mr Bieman appeared without representation, and by conference telephone.  Centrelink was represented by Alan Duri, an advocate from the Centrelink Service Recovery Team.

1. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.  

1. Mr Bieman gave evidence and was cross-examined on behalf of Centrelink.  I also asked him questions.

CONSIDERATION OF EVIDENCE AND FINDINGS

1. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation. 

1. At the outset of the hearing I explained to Mr Bieman that eligibility for carer allowance turned on what level of care Ms Doyle required, and what level of care he is providing to her.

1. Centrelink conceded that the care receiver, Ms Judith Doyle, suffers from schizophrenia, and therefore has a disability.

1. Centrelink relied on an Adult Disability Assessment Tool (ADAT) to determine its response to Mr Bieman’s claim for payment of carer allowance. The ADAT consisted of two forms: the Health Professional Assessment (HPA) completed by Dr Mathew on 30 August 2004 (T13) and the Carer Allowance Questionnaire signed by Mr Bieman on 1 November 2004 (T14).

1. A score of 14.50 was achieved on the questionnaire by Dr Matthews.

1. A score of 10 was achieved on the questionnaire completed by Mr Bieman.

1. When the ratings from the carer questionnaire and the doctor’s assessment are added together in accordance with Step 4 of Schedule 2 these produce a final score of  24.50. 30 is the minimum score.

1. I asked Mr Bieman to tell me about what he does for Ms Doyle. He said that everyday, including weekends, he walks to her home (which is about 10 minutes away), at 6 a.m. When he arrives she is already out of bed and she tells him what clothes she wants to wear that day.  He will run a bath for her because she has a bit of trouble getting the temperature right.  However she is able to get into and out of the bath unassisted. She gets dressed unaided but he does up the zip on her dress or does up buttons if they are down the back.  She is able to do this herself but he helps her.        

1. Ms Doyle is able to clean her teeth unassisted. She tends to her hair, including blow drying and using curlers. He helps her with hairspray. She applies her own makeup, however Mr Bieman puts on her powder and rouge for her.  She applies her own lipstick. She files her own nails (including toenails) and paints them, although he assists in the filing or cutting of her nails. 

1. They make the breakfast together – perhaps eggs and cereal.  After breakfast they wash up and clean the house together if she wants to.  He leaves at about 8 a.m. to attend to his own home.  He returns again at about 11 am and they might watch TV together and then make lunch together.  He goes home again at about 2 p.m. and she goes out also.  He returns the next day at 6 a.m. 

1. He will take her shopping and to the doctors but he only escorts her to the doctors and doesn’t go in.

1. Ms Doyle has a boyfriend in Sydney and she goes away for one week a month to be with him.  She packs her own suitcase with whatever clothes she decides to take.  Mr Bieman walks her to the station.  For another week per month the boyfriend comes to stay with her,  and Mr Bieman does not then go to Ms Doyle’s home.

1. He said that it might take about 2 hours to ‘get Ms Doyle ready’, as it takes him that long to get ready.

1. Dr Mathew described Ms Doyle as requiring a very low level of actual assistance.  The only area identified by him was in relation to requiring help with personal care: face, hair teeth.  Mr Bieman’s evidence was that other than the application of face powder and rouge, Ms Doyle manages her own makeup.  She manages her own hair, except for the application of hairspray.  This is a very low level of care indeed.

1. Similarly, in relation to the other assistance provided by Mr Bieman, his evidence was that Ms Doyle and he did things around her home together eg cooking and cleaning.  They shop together and he escorts her places.  The only limitation seems to be that she experiences is in relation to ensuring that the bath temperature is correct.

1. I accept that Mr Bieman spends several hours each day assisting Ms Doyle.  However, he fails to meet the requirement to spend at least 20 hours a week providing personal daily care for Ms Doyle.  Mr Bieman’s questionnaire records that he spends a total of 6.5 hours a week on care, and that most of the care he provides is not for the purpose of managing Ms Doyle’s bodily functions or sustaining her life.

1. His evidence was that he spends ‘2 hours a day’ getting her ready.  This would only amount to 14 hours a week.  He also does not go to her home at all for 2 weeks per month.  On his own evidence he leaves her home at 8 am after having run the bath, assisted her with dressing (including applying makeup and attending to her hair) and having breakfast with her.  Only a very small portion of this time could possibly be described as assisting her in relation to bodily functions.  There was no evidence of providing the requisite assistance during the balance of their day together.

1. Therefore Mr Bieman does not provide personal daily care which amounts to 20 hours per week and does not satisfy the legislative requirements in this regard also. 

1. Mr Bieman therefore cannot meet the criteria for the carer allowance.

1. I accept that Mr Bieman assists Ms Doyle out of kindness.  She no doubt values his companionship and support. However, the law does not recognise acts of friendship as acts of care for the purpose of payment of carer allowance.  It is a tribute to Mr Bieman that he said he would continue helping Ms Doyle whether he got the carer’s allowance or not.

DECISION

1. The Administrative Appeals Tribunal therefore affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         
Niamh Kinchin, Associate

Date of Decision  29 June 2005  
Representative for the Applicant               Self represented
Representative for the Respondent          Alan Duri, Centrelink Advocate