Cavanagh-Hans and Secretary, Department of Social Services (Social services second review)

[2017] AATA 687

Cavanagh-Hans and Secretary, Department of Social Services (Social services second review) [2017] AATA 687 (23 March 2017)

Division:GENERAL DIVISION

File Number:           2016/4615

Re:Sebastian Cavanagh-Hans

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:23 March 2017

Date of written reasons:        15 May 2017

Place:Brisbane

The decision under review is affirmed.

.......................[SGD]..............................

Senior Member T. Tavoularis

SOCIAL SECURITY – Carer Payments – does the Applicant provide constant care to mother – has mother been assessed and rated – mother has been assessed and rated and additionally qualified for DSP – Applicant attended high school during period under consideration – not deemed to provide constant care to mother – decision under review affirmed. 

Legislation

Social Security Act 1991 (Cth) s 198

Cases

Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582
Kedwell and Secretary for the Department of Social Security [1987] AATA 323
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Del Vecchio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1145
Re James and Commonwealth of Australia (1986) 11 ALD 273
Reidy and Secretary, Department of Social Security [1986] AATA 538

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis

15 May 2017

INTRODUCTION

1. This is an Application for review of a decision by the Social Services and Child Support Division of this Tribunal (“SSCSD”) dated 27 July 2016, affirming a previous decision to reject carer payments to Sebastian Cavanagh-Hans (“the Applicant”) for care he provided to his mother.

   ISSUES

2. There are two issues before the Tribunal today:

   (1)  does the Applicant provide “constant care” to his mother;
   and if so,

   (2)  whether the Applicant’s mother has been assessed and rated under the necessary assessment tool and whether she has obtained the necessary score under that assessment.

3. The latter question is no longer an issue, because the Secretary of the Department of Social Services (“the Respondent”) accepts that the Applicant’s mother has been rated under the applicable assessment tool and has obtained the necessary minimum score.[1]

   [1] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (“SFIC), [23].

   FACTS

4. The parties’ representatives helpfully told me during the hearing that none of the facts are in dispute. Suffice it to say that an adequate chronology of the factual sequence of this matter appears at paragraphs [3]-[18] of the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) and paragraphs [6]-[11] of the Applicant’s SFIC.

1. There can be no question that the Applicant’s mother is not a well lady. A report from a
   Dr Ladhams, dated 25 June 2015, tells us she suffers from at least seven identified conditions they being: (1) neurocognitive dysfunction, (2) cervical spine dysfunction, (3) radiculopathy, (4) mixed tissue connective disorder, (5) functional immunodeficiency, (6) fibromyalgia syndrome, and (7) chronic disequilibrium.[2]

[2] Exhibit 5, T Documents, T5, Report of Dr Ladhams dated 25 June 2015, p 125.

1. For these conditions, the Applicant’s mother has qualified to receive the Disability Support Pension (“DSP”). 

   THE RELEVANT DATE OR PERIOD

2. Some background is required here:

   a.    Counsel for the Applicant told me at the hearing that his client has in fact now qualified as of October 2016 for carer payments, consequent upon a social worker’s report prepared in the latter part of 2016.

   b.    Therefore, today’s application effectively comprises an exercise to recover claimed payments in arrears for carer benefits from October 2016 back to
   7 July 2015 being the date which he lodged his claim/application for carer’s allowance.

3. There is a preliminary question to resolve in relation to the specific date or period at or during which this application can be assessed.

1. The Respondent’s representative pointed me to the aforementioned decision of the SSCSD in which the decision maker adopted a “date of claim plus 13 weeks” approach similar to “the relevant period” definition applicable in DSP refusal cases. This suggestion was not challenged by counsel for the Applicant.

1. I therefore consider the relevant period to be from 7 July 2015 (the date the claim was lodged) to 6 October 2015 (being 13 weeks thereafter).

   BACKGROUND

2. In this application the Applicant must demonstrate an ability to satisfy the criteria to be met before a person is eligible to receive the carer’s payment from Centrelink.

1. My task is to assess the specific question of whether the Applicant provided “constant care” for his mother within the meaning of section 198(2) of the Social Security Act 1991 (“the Act”).

1. As mentioned before, this is a backward looking exercise because my assessment of whether the Applicant met the criteria goes back to 7 July 2015 and the relevant period thereafter.

1. For reasons I will explain, I am not satisfied that the Applicant was providing “constant care” in the sense contemplated by section 198(2) of the Act.

   THE APPLICABLE LAW AND RELEVANT AUTHORITIES

2. Section 198 of the Act provides:

   (1)  A person is qualified for a carer payment if the requirements of this section are met.

   Constant care for disabled adult or disabled adult and a dependent child

   (2)  The person must personally provide constant care for:

   (a)  either:

   (i)  … a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

   …

3. The import of section 198(2) of the Act is that a person may be entitled to receive a carer’s payment if he or she provides “constant care” to a disabled person. The expression “constant care” is not defined in the Act and it has been stated in earlier decisions that these words should be given their ordinary English meaning.[3]

[3] For example: Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689.

1. As expressed by my colleague Deputy President McCabe in the case of Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 (hereinafter referred to as the case of “Milne”) at paragraph [7]:

   ““Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost).”

2. The learned Deputy President also said at paragraph [7]:

   “A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace the income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.”

3. These comments are consistent with the definition of “constant care” appearing in the Guide to Social Security Law at chapter 1.1.C.310:

   “A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing ‘CP' [carer payment] is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities…”

   DID THE APPLICANT PROVIDE CONSTANT CARE FOR HIS MOTHER PURSUANT TO SECTION 198(2)?

4. I am not satisfied that the Applicant could be said to have provided “constant care” for his mother during the relevant period. This contention is, to my mind, supported by some relevant authorities.

1. In Kedwell and Secretary to the Department of Social Security [1987] AATA 323, Senior Member Renouf said (quoting from the decision of Reidy and Secretary, Department of Social Security [1986] AATA 538) at paragraph [23] that: “what is required is care which is continually recurring but with some regularity rather than spasmodically.” In that paragraph, Senior Member Renouf also referred to the matter of Re James and Commonwealth of Australia (1986) 11 ALD 273, a 1986 decision of this Tribunal, where it was said at page 275: “it is obviously contemplated that the affected person requires significant assistance every day. This should be contrasted with the notion of regular or routine assistance.”

1. This approach is echoed in the case of Re Del Vecchio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1145 at paragraph [38] where the Tribunal found that the care must be:

   “something more than episodic or spasmodic care and require a significant degree of daily care for the individual involved.”

2. In Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs [2013] AATA 582 at paragraph [19], Senior Member Kenny effectively dismissed (as I do) a threshold for carer payments on the basis of hours expended by the carer on the caring per week and said:

   “That test is not expressed in terms of a specified number of hours of care but whether care is provided for a significant period of each day such that the carer is unable to undertake substantial employment.”

   MY FINDINGS IN THIS MATTER

3. Based on the defined concepts of “care” and “constant” in the decision of Milne I find that in order for the Applicant to qualify for carer payment during the relevant period, he must show that he provided personal care to his mother on a daily basis for a “significant period each day”. 

1. I endorse and accept the resulting contention that it is necessary for the Applicant to demonstrate that he was providing at least a normal working day in personal care to his mother. I do not find that he did so during the relevant period.

1. I cannot find the necessary “constancy” in the Applicant’s submission when he talks about assisting “as necessary” in provision of meals, and “organising and monitoring” his mother’s medications.[4]

[4] See Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), [14].

1. Similarly, I cannot find any element of constancy of care in circumstances where the Applicant talks about attending to his mother’s “powering down” episodes. As mentioned at the hearing, I find these descriptions of care to be nebulous and not necessarily within the plain meaning of the concept of “care”.

1. I cannot accept that the Applicant was providing “constant care” to his mother, in circumstances where he was attending year 11 at school on an albeit flexible but full-time basis.[5] In my view the tasks he says he performed daily were more akin to managing a household than directly managing or caring for his mother. Those tasks do not fall within the definition of “care” as defined in Milne or the concept of “personal care” as defined in the Guide, which would involve constant assistance with mobility, bathing or grooming, the administration of treatment or therapy, and the constant supervision of safety.

[5] See Exhibit 4, Statutory Declaration of Sebastian Cavanagh-Hans dated 14 February 2017, [44]-[46].

1. These findings are not intended to in any way, label the Applicant as opportunistic or disingenuous. Quite the contrary, he is to be commended for using his very best endeavours, based on his limited resources, to provide comfort and support for his ailing mother.

1. In my respectful view, the Applicant’s commendable and keen desire to complete his year 11 and 12 studies have materially contributed to his inability to meet the requirements and definition of the expression “constant care” appearing in section 198(2) of the Act. His necessary commitment of time and effort to his studies has effectively precluded him from demonstrating to this Tribunal’s satisfaction that during the relevant time he acted as a carer on a “more or less full-time basis”.

1. I therefore cannot conclude that the carer payment he now seeks for the period July 2015 to October 2016 could be said to replace income that has been foregone because, for example, he gave up a regular paying job to take on the job of caring constantly for his ailing mother.

1. It does not escape my attention that the Respondent saw fit to award carer payments to the Applicant from after October 2016, which roughly correlates with the time he graduated from high school on 18 November 2016.[6]

[6] Exhibit 2, Applicant’s SFIC attachment: Social Work Assessment, p 10.

1. In my further respectful view this contention is supported by the Social Work Assessment completed in October 2016 which recommended a grant of carer payment following the Applicant’s completion of year 12 because, as noted by the Assessment author, with the completion of his schooling, any “hours he is away from caring will not be an issue”.[7]

   [7] Ibid.

2. To summarise:

   (1)I note that during the relevant period, the Applicant’s mother appears to have only required more intensive attention and monitoring during “powered down” times or specific “bad” days. There is no evidence, for example, of any emergent need for a substitute carer in place of the Applicant while he was at school or otherwise disposed.

   (2)I find that during the relevant period, the Applicant’s attendance at school (albeit with some reduced attendance) precludes him from demonstrating that he was unable to undertake substantial employment, or in this case full-time study.

   (3)I find that during the relevant period, the Applicant was not providing constant care for a significant period each day, equivalent to a normal work day or work week.

3. Accordingly, the Applicant does not satisfy the requirement in section 198(2) of the Act.

   DECISION

4. The decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[sgd]................................

Associate

Dated: 15 May 2017

Date of hearing:	Thursday, 23 March 2017
Applicant:	In person
Counsel for the Applicant:	M. Taylor
Solicitors for the Applicant:	Legal Aid Queensland
Solicitors for the Respondent:	R. McQuinlan, DHS - FOI and Litigation Team