Bryan and Secretary, Department of Family and Community Services

[2004] AATA 404

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 404

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1684

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HORACE BRYAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal The Hon R N J Purvis Q. C., Deputy President

Date20 April 2004

Place           Sydney

Decision  The decision under review is affirmed.

[Sgd] R  N J Purvis
  Deputy President

CATCHWORDS

SOCIAL SECURITY – carer’s pension – whether separate caravan constitutes home – decision affirmed

Kinsey v Secretary, Department of Social Security (1999) 20 ALD 14
Re Jackson and Secretary, Department of Family and Community Services (2000) AATA 636

REASONS FOR DECISION

20 April 2004 The Hon R N J Purvis Q.C., Deputy President  

the application

1. This is an application by Mr Horace Bryan seeking review of a decision made by a delegate of the Secretary of the Department of Family and Community Services on 17 September 2003. The decision so made was to refuse granting to Mr Bryan a carer allowance within the meaning of section 954 (1) of the Social Security Act 1991 (“the Act”).

the issue for determination

2.      The issue for determination by the Tribunal is thus as to whether Mr Bryan qualified for a carer allowance for providing care to a Mr Hancock while they each resided in their own caravan at a caravan park.

the hearing

3.      At the hearing of this matter Mr Bryan appeared on his own behalf. Ms Marian Buckley, advocate with the Respondent appeared for the Respondent.

4. There was introduced into evidence the documents lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and marked T1 to T22.  The Respondent’s Statement of Facts and Contentions was also tendered and market Exhibit 1 for identification.

5.      Mr Bryan gave evidence by telephone on which he was cross-examined.

the factual situation

6.      On the basis of the evidence tendered before the Tribunal the factual situation is as follows:

7.      At Nambucca Heads in northern New South Walers there is a caravan park known as the Foreshore Caravan Park.  So far as it is here relevant the caravan park is occupied by separately positioned relocatable caravans generally occupied as homes.  At least that is the position in the present matter.  The occupiers/owners of the caravans pay a rental fee, a site fee, to the owners of the park for the right to position their caravans on a designated lot.  Electricity is available.  The right to come into and remain on the lot is governed by verbal agreement between the occupier and the owner of the park.  The caravans are moveable.  The occupier controls the lot, space and is responsible for what occurs within the lot and the caravan.  Others may enter a caravan but only by invitation.  Locks are positioned on the caravans. It is the responsibility of an occupier to ensure that the appropriate insurance is in place.  Toilet and shower facilities are provided elsewhere in the park.

8.      Mr Bryan came on to the park with his caravan in 1991 and began to occupy a lot now known as lot 70.  Mr Hancock came onto the park in 1994 and was resident there in his caravan on lot 66.

9.      Mr Bryan’s caravan is quite large.  It has two bedrooms and a garage with necessary windows and an awning.  It of course is moveable but on the evidence has remained where it now is since arrival.  His son and daughters come and stay with him on occasions. A garden separates his lot from that of his next door neighbour.  There is a one metre grass verge and then a gutted road running in front of lot 70; the road is used mainly by the vehicles of other residents. 

10.     The caravan occupied by Mr Hancock was across the road from that of Mr Bryan “about eight metres away”.  It was only a one bedroom caravan.  At the relevant time Mr Hancock was not well and he stayed in his caravan and its bed most of the time subject to visits to medical people and treatment.  Mr Bryan was the one person in the caravan park who took an interest in the welfare of Mr Hancock and who helped him in and out of bed and attended to him when called upon so to do. They were within hearing distance of one another.  Mr Hancock would not allow any other person to enter his caravan but Mr Bryan.

11.     Mr Bryan called on Mr Hancock most days.  He was in telephone contact over night, Mr Hancock ringing him if needed.  There were occasions when Mr Bryan attended Mr Hancock of necessity.  They did not sleep in each others caravan nor did they generally, if at all, eat together.  Mr Bryan estimated that he could spend hours on any day attending to Mr Hancock.  He called on him nearly every day. Mr Hancock was according to Mr Bryan a “quiet person with little to do”.  Mr Bryan did all of Mr Hancock’s shopping and laundry and “cleaned as much as he was allowed, it was a real hovel”.  He arranged optical and medical appointments.

12.     Mr Bryan estimated that he spent 15 to 20 hours a week tending to Mr Hancock’s needs for a period of 10 to 11 months.  In June 2003 Mr Hancock moved to a nursing home, his caravan being sold.  Prior to that he had made numerous trips to Coffs Harbour accompanied by Mr Bryan in order for him to have chemotherapy and other treatment.  Mr Hancock had no other friends or available relatives.  It is apparent that Mr Hancock had a significant need for care.

discussion and decision

13.     As found by the Social Security Review Tribunal with which finding I agree, whilst Mr Bryan provided care to Mr Hancock, each owned and lived in a separate relocatable caravan in the caravan park.  Each occupant had a right to occupy to the exclusion of others the site allocated to such person.  Whilst the caravans of Mr Bryan and Mr Hancock were within eight metres of one another, they were clearly separate residences over which each occupant had dominion and control.

14. Section 954 (1) of the Act provides:

“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 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) 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”

15. It is only section 954 (1) (d) that is now relevant to this application. The issue here is whether because of the disability from which Mr Hancock was suffering he received care and attention on a daily basis from Mr Bryan in a private home that was the residence of Mr Bryan and Mr Hancock. Mr Hancock received from Bryan care and attention but was it in a private home that was such a residence?

16.     Each of Mr Bryan and Mr Hancock owned and was living in a separate relocatable caravan.  Each was entitled to occupancy of a separate lot.  Mr Bryan and Mr Hancock lived in close proximity although there was a physical delineation with a general access road existing between the residences. Care was provided primarily in the home of Mr Hancock whilst Mr Bryan lived in his caravan.  The care was not provided in Mr Bryan’s home.

17.     Was then the private home in the caravan on lot 66 the residence of Mr Bryan and Mr Hancock?  Residence is defined in the Shorter Oxford English Dictionary as inter alia including:

“…to have ones usual dwelling place or abode; to reside…the circumstance or fact of having ones permanent or usual abode in or at a certain place…the place where a person resides; his dwelling; the abode of a person…”

18.     A home is said to mean “the house and the land on which it stood, with all furniture and implements used therewith” (see Kinsey v Secretary, Department of Social Security (1999) 20 ALD 14 paragraph 13). After considering what had been expressed in a number of Court and Tribunal decisions, where discussion was had as to the meaning of the word “home”, “a persons’ residence” and separated couples residing under the same roof but not being in the “same home”,  Gray J in Kinsey (supra) at paragraph 14 said:

“In none of these cases is there any indication that separate buildings, on land in separate titles and under different ownership can together constitute one home. In my view, it would be necessary to stretch the meaning of the expression ‘‘home” to include such a situation. Nothing about the language of section 39 of the Act [Social Security Act 1947] compels the conclusion that any departure should be made from the ordinary meaning of the word. The concept of a home is a nebulous one to some extent but is difficult to apply to two separate dwellings, each with its own facilities complete owned and occupied by separate family groups, simply because there is ease of access between them and one person performs household duties, sleeps and eats in both.”

(See also Re Jackson and Secretary, Department of Family and Community Services (2000) AATA 636 paragraphs 12 to 15).

19.     It is maintained on behalf of the Respondent that its Policy Guidelines follow the rationale “that separate residences constitute separate homes” although the Guidelines do recognise that where there is an adjoining door that allows unhindered access between the homes or where the homes are within the same property boundary and in the immediate vicinity of each other, eg granny flats then the residence requirement may be satisfied. Further “that a person usually has only one residence, although where the care provider and care receiver, although maintaining separate residences, typically spend each night together and share at least one meal each day together under the same roof, they are considered to reside together for the purpose of carer allowance”.  The Guidelines of the Respondent Department merely intend to reflect the meaning ascribed to the relevant words by the decisions of the Court and Tribunal.

20.     In the present matter the caravans were on separate lots, 70 and 66.  Each of Mr Bryan and Mr Hancock had a separate and independent relationship with the owner of the caravan park. The caravans constituted sperate dwellings, each with its own facilities.

21. I am satisfied that the factual situation in this application is not such as to establish that the caravan on lot 66 be it the private home of Mr Hancock was the residence of Mr Bryan and Mr Hancock. The necessary criteria of section 954 (1) (d) of the Act is not then satisfied.

22.     For the above reasons the decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Deputy President

Signed:         Neil Glaser
  Associate

Date/s of Hearing  31 March 2004
Date of Decision  20 April 2004
Applicant  self-represented   
Solicitor for the Respondent     Ms M Buckley, Advocate