Cairns and Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 531
•20 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 531
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/1137
GENERAL ADMINISTRATIVE DIVISION
Re: SANDRA CAIRNS
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILIES,COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 20 June 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY – carer allowance – cancellation - caring for a disabled adult in a private home not shared by the adult and carer – criteria more stringent where carer and disabled adult have different residences – whether cancellation in error – decision affirmed.
Social Security Act 1991 ss 954, 954A
Guide to the Social Security Act cl 3.6.7.45
REASONS FOR DECISION
20 June 2006 Regina Perton, Member
1. Sandra Cairns is the carer of her ex-husband, Stephen Joseph. Mr Joseph suffers from a diagnosed mental illness as well as a suspected acquired brain injury due to a fall. Ms Cairns and Mr Joseph divorced some years ago. When a subsequent relationship broke up, Mr Joseph turned to Ms Cairns for care. They are not in a marital relationship. Ms Cairns, who has had to deal with many difficulties in her life, including the death of her son in tragic circumstances, is now dependent on a pension. She has a background in youth and aged care work. Ms Cairns cared for Mr Joseph in her home, a demanding role because of the nature of his illness. Ms Cairns was paid carer allowance from June 2001.
2. In April 2005, Centrelink, which acts on behalf of the respondent, was notified of a change of residential address for Mr Joseph. He had obtained a room in a rooming house but still spent most of his time at Ms Cairns’s home. However, as a result of the change of Mr Joseph’s place of residence, the criteria for payment of carer allowance to Ms Cairns changed. The criteria to qualify for carer allowance where the carer and the person being cared for do not share a home are more stringent than the criteria where the carer and the person being cared for share a home. On 16 June 2005, carer allowance for Ms Cairns was cancelled on the basis that she no longer qualified for the allowance. Centrelink acknowledged that she still cared for Mr Joseph but it was not to the degree required to meet the criteria for carer allowance where the carer and cared for live in different residences.
3. An authorised review officer of Centrelink affirmed the decision to cancel carer allowance on 1 August 2005. On 7 November 2005, the Social Security Appeals Tribunal (SSAT) also affirmed the decision. On 15 December 2005, Ms Cairns lodged an application for review with this Tribunal. The application was out of time but she was granted an extension of time.
4. Mr Joseph has now moved back to Ms Cairns’s home. Ms Cairns reapplied for, and was granted carer allowance from 11 May 2006, with the first payment being made a few days before the Tribunal hearing.
5. The issue before the Tribunal is whether carer allowance should have been cancelled on 16 June 2005.
EVIDENCE
6. At the hearing on 29 May 2006, Ms Cairns told the Tribunal about her background and that of Mr Joseph. She described the changes that occurred after his fall through a roof, the subsequent diagnosis of his psychiatric condition and the impact on their family life. The tragic death of one of their two sons added to the difficulties. The couple divorced after Mr Joseph re-partnered with a person he met while hospitalised for his condition. The financial settlement following the divorce and a breakdown following her son’s death resulted in Ms Cairns becoming unemployed and losing her home as she was unable to continue mortgage payments. Despite that, when her ex-husband’s subsequent partners abandoned him and he needed help she cared for him.
7. Ms Cairns indicated that she had trained and worked in youth and aged care and so is better placed than others to care for someone like Mr Joseph. However, caring for him can be very demanding at times. She realised she needed some respite care but none had been forthcoming despite Ms Cairns contacting relevant agencies and parliamentarians. She stated that she has recently been told she can get half an hour a week respite care. In conjunction with a care worker, they decided that Mr Joseph would take a room in a nearby rooming house so that Ms Cairns would have some respite. Ms Cairns stated that while Mr Joseph had that room, he would walk to her place each day and spend the days and evenings with her. She ensured that he had a healthy diet and exercise, something that did not occur to him when he had to look after himself. She ensured that he did not wander off. She described his sometimes anti-social behaviour that was prevented by her supervision of him. She said that while he had the room at the rooming house, he spent much more than 20 hours a week in her care at her home and regularly slept there as well. Ms Cairns described the proactive regime she provides to keep Mr Joseph on track. He has lapses from time to time but is now able to enjoy time with their grandchildren. Mr Joseph has now given up his room at the rooming house and has moved back in with Ms Cairns. Ms Cairns has recently reapplied for, and been granted, carer allowance.
8. Ms Cairns provided the Tribunal with letters supporting her role as Mr Joseph’s carer. James Rughoobur, Case Manager at Dandenong Area Mental Health Service, in a letter dated 19 December 2005, stated:
I have been the Case Manager of Mr Joseph since April 2004.
I wish to confirm that Mrs Sandra Cairns has been an active carer and advocate for Mr Joseph. Ms Cairns has remained an active carer irrespective of whether Mr Joseph was residing under the same roof or not. In April of 2005 Mr Joseph moved to a rooming house as a result of him being unwell.
Ms Cairns has stayed involved as a carer during that time ensuring that he was not suffering from neglect. Furthermore Mr Joseph has spent a lot of time staying and eating at Ms Cairns residence although his formal address was at the rooming house.
9. Dr Frank Kabourakis who is Mr Joseph’s general practitioner, in a letter dated 15 March 2006, stated:
This is to certify that: Stephen Joseph
attends this clinic for his medical care. He is unable to take care of himself appropriately without the help of his ex-wife. His attention to various important aspects of his health is hampered by his psychiatric illness leading to poor motivation, poor concentration. She takes care of all medical aspects including medication, food, activity. His weight has been reduced appropriately under her care. His mood is definitely under better control under her watchful eye. If not for her I believe Stephen’s condition would have been dire requiring much more intense medical attention…
10.Dale Wilson MP, in an undated letter addressed to the Tribunal, stated:
….
As you may be aware, the Dandenong region has a number of cheap boarding houses that provide much needed accommodation to local residents. Many of them, that I know, suffer from mental health illnesses.
I have known Sandra Cairns for many years, in my public role as an electorate officer, a councillor and as a Member of Parliament. For many of those years she has provided a place for her former husband to reside in the family home. At times, he did not take up this option and stayed with friends.
As a caring person, Sandra cares very much for Steve’s welfare. A safe, comfortable place to stay is vital for the security of all people, especially for those with an illness. However, the difficulties of residing with a person who is ill have made an alternative place to stay necessary. Therefore Sandra organized for Steve to have the boarding house room available. Even though the room is available, seven nights a week, he will stay in the family home with Sandra.
During the last 6 months he has spent only one night at the boarding house, and every other night in the family home of Sandra.
Therefore I support her appeal for a continuation of her Carer’s pension.
11. Ms Hume, an advocate representing the respondent, referred to a Carer Allowance Questionnaire completed on 20 June 2005 (T11). In that questionnaire signed by Ms Cairns, she indicated that she spent 2 hours per day on Feeding activities, 1 hour on Treatment and 7 hours per day in Behaviour management of Mr Joseph from Monday to Friday. Ms Cairns explained that she had left Saturday and Sunday blank on the advice of the social worker who assisted her to fill in the form. Ms Cairns stated that this was because she wanted respite care for those days rather than because she did not care for Mr Joseph on those days. She expressed the view that it was her reliance on the well-meaning but mistaken guidance of the social worker in completion of the form that had led to the cancellation of her carer allowance. She insisted that she cared for Mr Joseph every day and that he slept at her home rather than the rooming house, except on two occasions when she had other visitors staying in her two-bedroom home. Ms Hume also led Ms Cairns through the various questions on the form. Ms Cairns agreed that she did not need to provide personal care in relation to Mobility, Personal hygiene and Communication. Ms Cairns said that Mr Joseph undertook these activities himself, provided she reminded him to do so and assisted him with choices, purchases and encouragement to exercise.
12. In her application to the SSAT on 23 September 2005 (T19), Ms Cairns stated that she believed the decision to cancel carer allowance was incorrect because although we don’t live at the same address I do the required 20+ hours a week. In its decision the SSAT summarised the evidence given by Ms Cairns, including:
…
Through her care she is sustaining Stephen’s life and some semblance of what is normal, instead of him having to live a boarding house existence. Most days he is at her place; she feeds him; he stays with her 3-4-5 days; she takes him back to the boarding house to sleep; she said that Stephen takes his own medication, it is important that he takes responsibility for this himself; but she makes sure that he takes his medications in the morning and night; without her care he would stay in his room at the boarding house, he would not socialize, he has lost his nerve and is not comfortable in public; he gets anxious in social situations;…
…
She said that he will follow her 24/7 when he is with her; he has a personality disorder and psychiatric illness; he is welded to her side and she needs respite every now and then; she said that there is no support for carers, “…there is no respite for me”; he is his own biggest problem…
13. Mr Joseph, who had been excluded from the hearing room while Ms Cairns gave her evidence, confirmed his reliance on her. He stated that when he slept at the rooming house he walked or caught the bus to her home almost every day and spent the day there. He spoke about her quest to improve his health and her supervision of other aspects of his life. He indicated that his memory was not good but he was fortunate to have Ms Cairns caring for him.
CONSIDERATION OF THE ISSUES
14. Section 954 of the Social Security Act 1991 (the Act) sets out the qualification for carer allowance where a disabled adult is cared for in a private home shared by the disabled adult and the carer. Section 954A, which came into effect in September 2004, sets out the qualification where the care is given in a private home not shared by the disabled adult and carer. Some of the criteria for carer allowance are the same in both situations. These include the requirement that the care receiver is an Australian resident; the care receiver is a family member of the carer or a person approved by the Secretary; and the care receiver has been assessed with the same prescribed rating under the Adult Disability Assessment Tool. However, the requirements set out in s 954A(2) specify a greater degree of need by the care receiver where the carer and care receiver do not share their residence. There is also greater specificity about hours and daily care where the home is not shared.
15. Section 954A(2) of the Act sets out the greater care requirements where the home is not shared:
954A(2) The care and attention:
(a) must address special care needs:
(i)that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii)that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life; and
(b)must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and
(c) must:
(i) be received by the care receiver from the person alone; or
(ii)be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and
(d)must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and
…
16. The terms bodily functions and sustaining the care receiver’s life are not defined in the Act. However, guidelines are set out in clause 3.6.7.45 of the Guide to the Social Security Act prepared by the respondent, pertinent aspects of which are as follows:
…
Care & attention must address special care needs
To be eligible under the new rules, carers who do not live with the person being cared for will need to provide care and attention that address special care needs that the care receiver is assessed under the ADAT as having (i.e. assistance with bodily functions and/or to sustain life).
Special care needs include assistance with bodily functions and care to sustain life. Assistance with BODILY FUNCTIONS includes:
·MOBILITY, which may include assisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed,
·PERSONAL HYGIENE, including help with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet,
·EATING AND DRINKING (hydration and nourishment), which may include cutting, mashing or juicing food so the person can eat it, feeding the person food and drinks and supervising the person to ensure that their food or drink is consumed,
·COMMUNICATION, this may include signing or interpreting for the person and assisting the person to use communication equipment, and
·TREATMENT which may include helping the person take medication, changing dressings, applying bandages and operating and monitoring medical equipment.
CARE TO SUSTAIN LIFE includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.
Example 1: A daughter goes to her elderly mother's home to care for her mother every day. As her mother has chronic arthritis, she has difficultly getting around and undertaking basic tasks as her hands and feet are affected. Her daughter assists her with showering and dressing in the morning, feeding her breakfast and lunch, and helping her get around the house. All of these activities address her mother's special care needs and meet the requirements of the 'care and attention' definition, so they may be counted towards the daughter's minimum of 20 hours a week for CA qualification under section 954A.
Activities that DO NOT address the care receiver's special care needs (as assessed under the ADAT), and which do not relate to the care receiver's bodily functions or to sustaining their life, are not considered to be care and attention e.g. shopping, housework and travel time.
Example 2: Activities undertaken by the daughter such as travelling to her mother's house, reading a book aloud to her mother and making afternoon tea for her mother do not address her mother's special care needs as defined in section 954A(2) because they do not relate to her bodily functions or to sustaining her life. This means that these activities would not be 'care and attention' that could be counted towards the daughter's minimum 20 hours a week for CA qualification under section 954A.
Care & attention must be received by the care receiver on a daily basis, for a total of at least 20 hours per week
To qualify for CA a non co-resident carer must provide at least 20 hours of 'care and attention' to the care receiver per week. At least some of this care must be provided to the care receiver by the carer on a daily basis, that is, each and every day. There is no specified minimum level of care to be provided in a day. This requirement is as flexible as possible to help non co-resident carers balance work, families and caring as best they can.
Example: A carer might visit the care receiver every weekday morning for an hour to help bathe and dress the care receiver before work, then spend 15 hours on the weekend providing care.
…
17. Centrelink records indicate that Mr Joseph’s residential address was different to that of Ms Cairns from mid April 2005. This was confirmed by the letter from his case manager, Mr Rughoobur. Ms Cairns conceded that Mr Joseph rented that room until recently although she stated that he only used it occasionally. The Tribunal finds that Ms Cairns and Mr Joseph had different residences at the date of cancellation of carer allowance in June 2005.
18. The evidence before the Tribunal indicates that Mr Joseph has been assessed as meeting the required level under the Adult Disability Assessment Tool. However, that is not sufficient for carer allowance to be paid where the carer and care recipient have different residences. The Tribunal believes it appropriate to follow Departmental policy found in the Guide to Social Security Law in relation to the interpretation of s 954A(1)(ii). While Ms Cairns provides guidance to and supervision of Mr Joseph, the evidence is that he is mobile, attends to his own personal hygiene, has no difficulties in eating, is able to communicate with others and takes his own medication. Ms Cairns gave examples of occasions when Mr Joseph wandered off from home and eventually came back some hours later. However, she also indicated that he made his own way from the rooming house to her home by bus or walking and that she can leave him at home for a short time although he usually accompanies her when she goes out. However, the evidence does not show that he requires the level of care required to sustain life. The Tribunal finds that the care taken by Ms Cairns, while significant, does not relate to Mr Joseph’s bodily functions or sustaining his life.
19. Given that the Tribunal has found that Mr Joseph’s special care needs do not meet the criteria set out in s 954A(1)(ii), there is no need to determine whether Ms Cairns cared for him every single day at the time of cancellation of the carer allowance. The Tribunal accepts that Ms Cairns provides significant support for Mr Joseph and that he would not be able to care for himself well or be as healthy without her care and devotion to her ex-husband. The Tribunal accepts Ms Cairns’s evidence that the rooming house accommodation was primarily obtained so that she could have a break from Mr Joseph given the lack of availability of accessible or affordable respite care for carers of middle-aged adults suffering from psychiatric illness. However, the legislative provisions have strict rules for payment of carer allowance where the carer and care receiver reside apart and the Tribunal does not have discretion to overlook the qualifying criteria.
DECISION
20.The Tribunal affirms the decision under review.
I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 29 May 2006
Date of decision: 20 June 2006
Advocate for applicant: Self‑represented
Advocate for respondent: Ms J Hume, Centrelink Legal Services Branch
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