Brown and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 475

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 475

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No S2002/245

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAUREEN BROWN

Applicant

And SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date23 May 2003

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Sgd)  Joan Dwyer

Senior Member

SOCIAL SECURITY – carer’s allowance – place of residence of carer – decision affirmed

Social Security (Administration) Act 1999 s 179

Social Security Act 1991 s 954

REASONS FOR DECISION

23 May 2003 Mrs Joan Dwyer, Senior Member             

1. This is an application under s 179 of the Social Security (Administration) Act 1999 (“the Administration Act”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made 14 June 2002. The SSAT affirmed a decision made by a Centrelink officer on 7 December 2001 and affirmed by an Authorised Review Officer (“ARO”) on 15 May 2002 rejecting Mrs Brown’s claim for carer allowance for caring for her adult son Scott Horsnell.

2. Mrs Brown did not appear at the commencement of the hearing. The Tribunal’s Associate contacted her on the telephone and she said she had confused the day. She decided that rather than adjourn the matter she would like the hearing to proceed with her on the telephone. Mr Underwood, an advocate with Centrelink, appeared for the Secretary to the Department of Family and Community Services. He consented to that course.. Mrs Brown agreed that Mr Underwood could remain in the hearing room, even though she was on the telephone. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and a form headed “Review Report on Mental Incapacity” completed by Dr Norrie, Senior Consultant Psychiatrist which was marked exhibit A1.  Mrs Brown had lodged a summary of her case.  Mr Underwood had lodged a Statement of Facts, Issues and Contentions.

THE FACTS

3.       There is no dispute on the facts.  Scott Horsnell suffered severe frontal lobe brain damage as a result of an assault in April 1999.  At the time of the assault he was 30 years old.  Mrs Brown wrote in her summary:

Scott has suffered severe frontal lobe damage.

His behaviour is very erratic and his control part of the brain has now no on and off switch to act out normally.

He cannot analyse right from wrong and needs a program set each day to act out.

He has only now 50% energy.

His behaviour since injury is very aggressive, and out of control often, so it is very difficult to get carer, so I have had to take over duties.

4.       Dr Norrie in his report of 19 June 2002 (A1) stated that Mr Horsnell had psychotic symptoms due to his brain injury and also suffered from injury related epilepsy.  There is no dispute about Mr Horsnell’s medical problems or about the fact that Mrs Brown provides care for him for some hours each day in the home where he lives alone.  She explained that she lives at a different address with her 15 year old son and that they cannot all live together because Scott’s aggressive behaviour is scary and frightening for the younger son and also for her.  She said that Scott smashes doors when out of control.  There is evidence that he does not trust other carers and he has threatened one with a knife.  Mrs Brown said that sometimes she is frightened to remain with him and it can be dangerous to be in a car with him because if he gets angry he will start to punch and spit on her even if she is driving.  She described Scott as like a time bomb.

5.       Mrs Brown lodged her claim on 7 December 2001.  It was rejected on the same day on the grounds that Mrs Brown did not provide care on a daily basis and was unable to live at the same address as Scott due to his violent behaviour.

THE LEGISLATION

6. The failure to live at the same address is crucial because s 954(1) of the Social Security Act 1991 (“the Act”) provides as follows:

954(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, and been given a score of not less than 30, under the Adult Disability Assessment Tool; and

(d)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; and

(f)the person is an Australian resident.

THE EVIDENCE

7.       When the ARO made his decision affirming the original decision rejecting the claim he had received four letters supporting Mrs Brown’s claim from social workers, a co-ordinator at the Brain Injury Option Coordination Team and from the treating doctor.  Shortly after the ARO decision rejecting the claim a further letter was received from the psychiatrist, Dr Norrie.

8.       The ARO, prepared a careful, fair and comprehensive summary of the facts (T10 pp49-50).  He concluded:

The legislative requirements are set out in section 954 of the SSA and require, among other things, that:

(d)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; and

. . .

The problem of care providers living somewhere other than with the care receiver was brought up at the ARO conference in April and the response from the NA policy area was that the client department are sticking to the legislation as is and not allowing any discretion.

In this situation I can see no option but to affirm the original decision although it is clear that this is a case which 'slips through the cracks'.

9.       On the evidence this is indeed a case which “slips through the cracks”. But there is nothing the SSAT or this Tribunal can do about that. We must apply the law as it is set out in the Act, and there is no special circumstances discretion in s 954(1) of the Act. Mr Underwood said that a request for an Act of Grace Payment had been made on behalf of Mrs Brown but it was rejected early this year.

10. Mrs Brown at the hearing explained that she sees herself as trying to get the Act amended not only for herself, but also to help other carers in a similar situation. She said that she spends hours almost every day with Scott at his home and occasionally takes him out or to her place for a few hours. She said she cannot live with him because of his violence and if she did not care for him he would need to be institutionalised. Mrs Brown said that the psychiatrist, Dr Norrie, had told her that he thought Scott would commit suicide if he were institutionalised.

11.     Mrs Brown intends to take this matter up again with the Ombudsman and parliamentarians.  She may take other action in the attempt to bring about a change in the law.  She therefore would like the Tribunal’s reasons to be full and detailed.  She agreed that the Tribunal should set out the letters received in support of her claim.

12.     Ms Hetzel, a social worker at Adelaide Central Community Health Service, wrote on 1 March 2002 (T6 pp42-43):

I am writing in support of Mrs Maureen Brown who I have known for six years in my capacity as Social Worker at Adelaide Central Community Health Service, Enfield.

Mrs Brown conducts the full time caring of her brain injured son, Scott since his severe injury.  She washes, cleans, manages his financial affairs, doctor’s appointments, cooking, bed, defrosts the fridge, calms him down organises his affairs and generally cares for all his needs on a day to day basis.  Scott’s behaviour is extremely erratic, angry and violet and other service providers have often refused to work with him either at all or without Mrs Brown’s assistance.  Therefore Mrs Brown’s lifestyle is severely compromised by her level of commitment to Scott’s needs.

. . .

With Mrs Brown’s untiring commitment to her son’s care, the entire family is under constant stress both emotionally and financially.  Should Mrs Brown not be in a position to continue the care of her son, he could not continue to live in the community.

Any financial support that you can provide will greatly relieve some of the financial pressure Mrs Brown is under.  Should you require more information please do not hesitate to contact me.

13.     Ms Hynes, the Options Coordinator at Brain Injury Options Coordination gave a graphic and detailed picture of the problems Scott has, and their impact on Mrs Brown.  She wrote (T7 pp 44-46):

I am an Options Coordinator at Brain Injury Options Coordination (BlOC). Scott was referred to BlOC on the 27/5/99. I understand that Scott's mother, Maureen Brown has applied for The Carer's Allowance, and been declined as Scott does not reside with Maureen. I have outlined the impact of Scott's acquired brain injury, along with his care needs and support required and utilised.

Scott sustained a traumatic head injury as a result of an alleged assault by a bouncer at a nightclub on 18/4/99. He was admitted to The Royal Adelaide Hospital, prior to being transferred to Julia Farr Services Residential Rehabilitation Unit on the 13/5/99. Scott remained there until 12/7/99 until he was discharged to his father's care. Scott attended ongoing rehabilitation through the Community Rehabilitation Program at Payneham for a period of 5 and a half months, before discharge 27/1/00.

Scott currently receives the Disability Support Pension and lives alone in a property managed by Lutheran Community Care. The accommodation is meant to be share, however due to Scott's behavioural issues it is not possible to place anyone else in the property.

Scott sustained significant behavioural changes and cognitive impairment as a result of the brain injury. Behavioural changes in Scott have been noticed since his brain injury, including;

·     Aggressive behaviour- verbal and physical.

·     Takes medication for aggressive behaviour and depression. Talks of suicide on a regular basis. Maureen reports that since the brain injury Scott is extremely angry most of the time, with little things triggering anger and at times this has resulted in Scott putting holes in her doors and walls and thumping the television. Scott has demonstrated threatening behaviour towards Maureen. Scott's neighbours have notified BlOC that they often hear Scott through the wall of the maisonette, thumping the wall and yelling at people over the telephone. He has also been seen yelling at an elderly neighbour, and a support worker reports that he has pulled a knife out of the kitchen drawer and has threatened to kill workers from his support agency

As a result of Scott's injury he sustained significant cognitive changes. Scott's main cognitive concerns, as noted in the Rehabilitation Exit Summary (27/01/00) and neuropsychogical assessment (5/03/02), present to be;

·     Lack of insight, poor problem solving skills, very poor concentration/attention, poor impulse control, memory difficulties, difficulty initiating activities, learning difficulties, reduced social awareness and self- monitoring/regulation of behaviour.

Scott's brain injury has impacted on many other areas of his life. In particular;

·     Health

Scott now suffers intermittently from epileptic seizures and is on medication for these. He now takes medication in a liquid or water form due to problems with swallowing tablets. Maureen states that since Scott's brain injury his consumption of cigarettes and marijuana have increased significantly. .

·     Activities of Daily Living

Scott lacks motivation to follow through. He is provided with contracted support workers to assist him with these tasks but often refuses their help as he views himself as independent. This means that the task is often not done resulting in dirty clothes and an untidy home. He requires assistance with formulating a shopping list and budgeting. He is unable to prepare meals due to attention issues. Scott is unable to drive a motor vehicle due to seizures. He has been accessing public transport, however this is becoming less possible due to Scott's aggressive outbursts.

·     Personal business Management

Scott requires assistance to follow up on any correspondence due to problems with concentration. Maureen relayed that Scott managed his own money after discharge from Julia Farr Services, however soon after pension day his money had been spent. Maureen now manages Scott's money to ensure that his bills and rent are paid. Scott needs prompting and guidance to attend appointments due to poor motivation.

Scott now requires support to maintain living in independent accommodation. He currently receives both formal and informal supports. Scott currently has access to 8.5 hours of support every week from care attendants through the Paraplegic Quadriplegic Association. This support can be utilised for cleaning, laundry, social support, meal preparation, shopping, personal business management and attending appointments. I understand that Scott only accesses 5 hours a week of this support due to issues of difficulties with trusting workers and declining the support as Scott feels that he manages. Due to Scott's Depression and threats of self-harm he is also involved in the Metro Options Program, which is for clients with an acquired brain injury and mental health issues. This support aims to improve social skills, and become involved in recreational and vocational activities.

Scott has ongoing Psychiatric care and visits Dr Norrie, a Psychiatrist at Glenside, every 2 months.

Given Scott's limited insight, difficulties with building relationships an accepting increased support, Maureen states that she provides support to Scott to assist him to remain in independent living. Scott is unable to reside with Maureen due to his behavioural and cognitive issues that often result in aggressive behaviour towards Maureen, other members of the family and the community. Maureen states that she attends on a daily basis to Scott's home and assists with the following tasks:

·     Cleaning and tidying

·     Laundry

·     Some gardening and weeding

·     Manages Scott's bill paying, allocates spending money, budget

·     Acts as liaison person with the Public Trustee

·     Attends appointments with Scott

·     Social support

·     Meal preparation

·     Monitors purchase of medication

·     Transport as required to appointments/shopping

The brain injury has impacted on Scott's life significantly. Scott’s cognitive and behavioural issues prevent him from residing with Maureen or others. Scott is now reliant on case management and care attendant support to live independently in the community. In addition his continuing cognitive behavioural and emotional issues are likely to prevent him from finding and maintaining employment, developing meaningful relationships with people and engaging in recreational and social activities. The extra informal support, as that provided by Maureen is also necessary for Scott to remain in independent living.

. . .

14.     Ms Kirk the senior social worker at The Public Trustee also supported Mrs Brown’s claim.  She wrote (T8 p47):

I am writing in support of Ms Maureen Brown’s application for a carer’s pension for the care provided by her to her son Scott Horsnell.

Ms Brown provides a high level of care on a daily basis to her son, who due to his brain injury, does not, generally, trust other people to assist and care for him.  Ms Brown is on 24hour call for her son, responding to calls for assistance throughout the day and night.  To provide this level of support Ms Brown incurs costs which her own reduced financial circumstances can not sustain and she is unable to take up any employment that would enhance her own circumstances.

It is fair to say that Ms Brown’s level of care and involvement with her son is a significant factor in keeping him from being institutionalised.  The care that she gives is on a 24hour basis and drains her own meagre financial resources.

. . .

15.     Scott’s treating general practitioner, Dr Hardy wrote (T9 p48):

Mrs Brown has been my patient for nearly 10 years.  In April 1999 her son Scott aged 30yrs, a single man, was assaulted by a bouncer & suffered very severe head injury with temporal lobe damage.

Dr Norrie, the young man’s psychiatrist, does not want him admitted to residential care because he is too young.

Mrs Brown is left as his only carer, is on call 24 hours a day & is phoned hourly by day & often at night.  She spends up to 6 hrs a day in his home at Enfield doing housework, cleaning, washing meal preparation etc, & takes him to doctors appointments.  She helps with his medications.

She has a home and another 14 year old son to look after at another address in Valley View.

She gets only parenting payment to look after the younger boy but has been told she is not eligible for carer’s allowance.  He can’t sleep at his mother’s home because of his violent behaviour.

Please help her if you can.

CONCLUSION

16.     Mrs Brown explained in her evidence and in her summary of her case that she is in financial difficulty and that the main reason she would like additional funding is to pay her petrol costs associated with driving 22kms a day to care for Scott.  She is particularly worried about what will happen when her younger son turns 16 so that she is no longer entitled to parenting payment.  She obviously could not be available for work because of her responsibilities as Scott’s carer.

17. The crucial issue as stated by Dr Norrie (A1) is that Scott has psychotic symptoms and significant mood disturbance lability and volatility of mood. He also has profound behavioural dyscontrol and injury related epilepsy. He requires regular carer support to maintain independent living. Mrs Brown provides that support and therefore is not available to accept employment, but there is no social security maintenance payment available to her. I appreciate the difficulties she faces but I must apply the provision of s 954(1) of the Act. Mrs Brown is not qualified for carer allowance as she can not satisfy s 954(1)(d) of the Act.

18.     The decision under review will be affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member

Signed:          Grace Carney
  Personal Assistant

Date/s of Hearing  23 May 2003
Date of Decision  23 May 2003
Solicitor for the Applicant           Nil - Self Represented
Departmental Advocate             Mr J Underwood