Bonnett and Secretary, Department of Family and Community Services

[2005] AATA 1140

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1140

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/637

GENERAL ADMINISTRATIVE DIVISION

Re:         BRETT BONNETT

Applicant

And: SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr E. Fice, Member

Date:             17 November 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

SOCIAL SECURITY – carer allowance – backdating of start date – meaning of acute onset – schizophrenia

Social Security (Administration) Act 1999 Schedule 2 cl 17

Social Security Act 1991 s 954(1)(d)

REASONS FOR DECISION

17 November 2005  Mr E. Fice, Member

1.      Mr Bonnett lodged a claim on 6 November 2003 seeking a Carer Allowance in respect of Ms Karen Linford.  His claim was allowed and backdated to commence on 23 October 2003.  Mr Bonnett claimed he was entitled to a Carer Allowance for Ms Linford commencing 10 January 2003 and he appealed to the Social Security Appeals Tribunal (“SSAT”).  The SSAT affirmed the decision made by the Centrelink officer on 24 November 2003 not to grant a Carer Allowance to Mr Bonnett prior to 23 October 2003.  Mr Bonnett seeks a review of that decision.

2.      Mr M Carey of Counsel appeared on behalf of Mr Bonnett. Ms K Paul, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Family and Community Services (“the Secretary”). The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and a psychiatric report from Dr J Ellix dated 11 October 2005.

BACKGROUND

3.      Ms Linford first suffered a psychotic event in 1984 when she was smoking marijuana.  She experienced hallucinations about the person she was with at the time.  She later experienced further hallucinations, and suffered from panic attacks and fear.  At the time she was 18 years of age.

4.      Ms Linford was first diagnosed as suffering from schizophrenia by her general practitioner in Wodonga in 1989.  She saw a psychiatrist at that time who told her that she should stay in hospital for a few weeks.  She had a number of sessions with that psychiatrist but she cannot recall exactly when.

5.      Ms Linford continued to work in a number of jobs, including jobs in Sydney, Newcastle and Albury, after she was diagnosed as suffering from schizophrenia. 

6.      Mr Bonnett claimed and received carer payments in respect of Ms Linford during 1996, 1997 and early 1998.  In mid-1998 he transferred to a Disability Support Pension (“DSP”).  In August 2001 Mr Bonnett again claimed and was granted a carer allowance for Ms Linford. Those payments continued until late January 2002 when Ms Linford left the house that she and Mr Bonnett shared in Wangaratta.

7.       Ms Linford left the Wangaratta house suddenly because of problems at home and problems with her son.  Because she left the home where she and Mr Bonnett resided, Mr Bonnett’s entitlement to the carer allowance ceased.

8.      Ms Linford suffered a miscarriage while in Sydney in April 2002 and was admitted to the Royal Women’s Hospital in Randwick.  Mr Bonnett went to Sydney and stayed in the hospital with her.

9.      Ms Linford and Mr Bonnett remained in Sydney for about three months while Ms Linford recovered from her miscarriage.  They had problems finding accommodation and Ms Linford was assisted by the Salvation Army.  Mr Bonnett did not live with Ms Linford during that time.  They both remained in Sydney for four to five months and then returned to Wangaratta in about July or August 2002.  Housing was difficult to find and Ms Linford apparently moved in with a friend, while Mr Bonnett lived in group housing.

10.     Mr Bonnett and Ms Linford moved to Albury just before Christmas 2002 where Ms Linford stayed with her mother while Mr Bonnett found accommodation at a men’s shelter.  This arrangement did not last for very long and they found private rental accommodation in Oaklands.

11.     Ms Linford’s health deteriorated again and she was admitted to the Kerford Clinic in about June 2003.  She remained at the clinic for about eight weeks before being discharged in about September or October 2003. Then she and Mr Bonnett moved into a caravan park. 

12.     They were both asked to leave the caravan park because of Ms Linford’s behaviour which was brought on by her medication.  They were essentially homeless until they found accommodation in Wodonga where they now reside together.  It was only after they found accommodation together in Wodonga that Mr Bonnett contacted Centrelink again to claim a carer allowance in respect of Ms Linford.

PARTIES' CONTENTIONS

13. Mr Bonnett contends that Ms Linford’s schizophrenia had several acute onsets; one in late 2001 or early 2002 when Ms Linford left home in sudden circumstances and went to Sydney; one when she suffered a miscarriage in April 2002; and one when she was admitted to the Kerford Clinic in June 2003. Alternatively, he contended that Ms Linford’s first psychotic episode, experienced in 1984 when she was smoking cannabis and experienced hallucinations, was an acute onset of her psychiatric disorders. Mr Bonnett seeks to rely on cl 17 of Schedule 2 of the Social Security (Administration) Act 1999 (“the Administration Act”) which provides:

17.(1)      If: 

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and 

(b)the person makes a claim for carer allowance within 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a); 

the person’s start day in relation to the allowance is the day on which the person became qualified for carer allowance in the circumstances mentioned in paragraph (a). 

17.(2)      If: 

(a)a person is qualified for carer allowance for a care receiver who is a disabled adult in circumstances where the disability affecting the adult is due to an acute onset; and 

(b)the person makes a claim for carer allowance more than 26 weeks after the day on which the person became qualified for the allowance in the circumstances mentioned in paragraph (a); 

the person’s start day in relation to the allowance is the first day of the period of 26 weeks ending immediately before the day on which the claim was made.

14. Mr Bonnett contended that he qualified for the carer allowance when he began living with Ms Linford again, on 10 January 2003. He submitted that cl 17(2) of Schedule 2 of the Administration Act did not require him to be qualified at the time of the acute onset; but that where a claim is made more than 26 weeks after the day on which he became qualified, he is entitled to the benefit of the backdating provision.

15.     The Secretary contended that there is no medical evidence that the 1984 psychotic episode suffered by Ms Linford constitutes an acute onset of her schizophrenia. Ms Linford was diagnosed with schizophrenia in 1989 and there is no evidence that she required care prior to 1996, when Mr Bonnett was granted the carer allowance, and which he received between 1996 and 1998. According to the Secretary, even if the 1984 psychotic episode can be classified as an acute onset, cl 17(2) nevertheless requires that the person seeking the carer allowance be qualified for that allowance at the time of the acute onset. According to the Secretary, that is not the case here because Ms Linford did not require daily care at the time of the acute onset of her condition. A person is qualified for carer allowance for a disabled adult if, amongst other things, because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver (s 954(1)(d) Social Security Act 1991).

CONSIDERATIONS

16.     Ms Linford’s evidence, which was supported by her treating psychiatrist, Dr J Ellix, was that while smoking cannabis at the age of 18, she suffered from hallucinations and thought there had been a nuclear war.  In looking at a telephone, she said it appeared to be melting down, consistent with her belief.  Since that time, she has suffered from hallucinations and panic attacks.  She said that these attacks were brought on by increased stress.  She did not meet Mr Bonnett until 1994.  She was first diagnosed as suffering from schizophrenia in 1989 although, according to Dr Ellix, her first psychotic episode in 1984 was likely to have been a manifestation of her schizophrenia.  Dr Ellix described the onset of the schizophrenia as acute in that it came on quickly rather than over a period of time.  According to Dr Ellix, following that acute onset, the schizophrenia developed into a chronic disorder.  With the passage of time, Ms Linford lost the ability to organise and care for herself such that she could not live independently.  Dr Ellix’s evidence was not contradicted and I accept what she said about the onset and development of Ms Linford’s schizophrenia.

17.     Despite the acute onset of schizophrenia, there was no evidence to suggest that Ms Linford needed care and attention on a daily basis at that time.  In fact, even after she was diagnosed with schizophrenia in 1989, she went to Sydney and worked at a Post Office for three months and she also worked in a number of other jobs.  She worked in Albury in a pathology laboratory for some six months and in the Electoral Office.  In fact, there was no evidence that Ms Linford required care on a daily basis until Mr Bonnett was granted the carer allowance in 1996.  Mr Bonnett ceased to be qualified for the carer allowance in 1998, when he transferred to a Disability Support Pension.  He claimed and was granted the carer allowance in August 2001 and received payments up to January 2002.  He again qualified for Carer Allowance in January 2003.

18.     Mr Bonnett submitted that the act of Ms Linford fleeing in December 2001 to Sydney; the miscarriage in April 2002; and her hospital admission at Kerford Clinic in June 2003, each caused an acute onset of her schizophrenia.  However, given the evidence of Dr Ellix that Ms Linford’s psychotic episode in 1984 most likely was the acute onset of her schizophrenia, the subsequent events cannot also be described as the onset of her condition.  It seems more likely that they were acute episodes of her psychiatric disorders brought on by stress.  According to Dr Ellix, Ms Linford has suffered from schizophrenia since 1984, even though it was not formally diagnosed until 1989.  I accept her analysis.

19. The question therefore for me to decide is what is the appropriate start day for payments of the carer allowance to Mr Bonnett? The general rule, which is set out in cl 3 of Schedule 2 of the Administration Act, is that the start day in relation to the payment of social security is the day on which the claim is made. Mr Bonnett claimed the carer allowance on 6 November 2003. That ordinarily would be the start day; except that cl 17 of Schedule 2 of the Administration Act allows the start day to be backdated in the circumstances set out in that clause. The clause does not explicitly mention a temporal connection between the date of acute onset and the date when the carer became qualified for an allowance. However, this would seem to necessarily follow because backdating of the start date is only permitted under the section where the relevant disability affecting the adult is due to an acute onset. As I understand that phrase, the acute onset itself must give rise to the disability which in turn, when combined with the qualifications for the allowance set out in s 954(1) of the Social Security Act 1991, results in the person making the claim being entitled to a carer allowance.  Acute is defined in Blacks Medical Dictionary, 39^th Edition as a condition of short duration which starts quickly and has severe symptoms. Therefore, while I accept that Ms Linford’s schizophrenia had an acute onset, she did not suffer a disability as a consequence of the acute onset which required care and attention on a daily basis. Rather, it was the development of chronic schizophrenia which resulted in Ms Linford requiring daily care and attention. On the evidence, this did not occur until 1996, some 12 years after the acute onset, when Mr Bonnett claimed and received a carer allowance in respect of Ms Linford because of her schizophrenia. It follows that I cannot accept Mr Bonnet’s submissions regarding the interpretation of cl 17(2) of Schedule 2 of the Administration Act.

CONCLUSIONS

20. Ms Linford’s disability arises out of her chronic schizophrenia which gave rise to the need for daily care and attention in about 1996. Her disability was not due to an acute onset of the disease in 1984, as she continued, for a period of almost 12 years after the acute onset, to look after herself and her first child. Therefore, it is my opinion that cl 17(2) of Schedule 2 of the Administration Act does not apply to this case.

21.     Mr Bonnett lodged the current carer allowance claim on 6 November 2003. However, he first made contact with Centrelink to claim carer allowance on 23 October 2003.  Therefore, Mr Bonnett’s allowance commenced from that date.  In my opinion, that decision is correct.  Therefore, the decision made by the SSAT on 22 April 2004 should be affirmed.

I certify that the twenty‑one [21] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E. Fice, Member

(sgd)     Angela Dennis

Clerk

Date of Hearing:  20 October 2005

Date of Decision:  17 November 2005
Counsel for the applicant:         Mr M. Carey
Solicitors for the applicant:        Nevin Lenne & Gross

Advocate for the respondent:     Ms K. Paul, Legal Services Branch, Centrelink