Channells and Secretary, Department of Family and Community Servi Ces
[2004] AATA 53
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 53
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/568
GENERAL ADMINISTRATIVE DIVISION )
Re ROY CHANNELLS Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date23 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd).....................
IR Way
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – carers’ allowance – care receiver must receive care and attention on a daily basis in a private home that is the residence of the care giver and care receiver – care receiver resides in a separate caravan to the care giver in the same caravan park – carer and caree not residing in same residence – decision affirmed
Social Security Act 1991, s 954
Re Jackson and Department of Family and Community Services [2000] AATA 636
Re Snell and Department of Family and Community Services [2002] AATA 135
Re Brown and Secretary, Department of Family and Community Services [2003] AATA 475
Kinsey v Secretary, Department of Social Security (1999) 20 ALD 14
Re Jordan and Secretary, Department of Family and Community Services [2003] AATA 816REASONS FOR DECISION
23 January 2004 Mr I R Way, Member 1. This is an application by Roy Channells for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 3 June 2003, which affirmed a decision made by Centrelink on 28 March 2003 to reject the applicant’s claim for carer allowance.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14). The applicant was self represented and gave oral evidence.
3. The respondent was represented by Ms H Wallis-Dunn.
Background Facts
4. There was no dispute between the parties about the background facts of this matter and, in view of this and on the material before it, the Tribunal finds:
§ On 19 March 2003, the applicant completed a claim for Carer Allowance and/or Carer Payment stating that he was caring for William John Lee of S36, Ferry Reserve, Brunswick Heads; that his relationship to Mr Lee was that of friend; that Mr Lee had suffered a stroke and suffered from depression; and that Mr Lee did not usually live with him.
§ Dr Marc Heyning completed a Health Professional Assessment form in relation to Mr Lee on 18 March 2003.
§ On 28 March 2003, the applicant’s claim was rejected. The applicant was advised of this the same day and that the reason for the rejection was because he did not reside permanently at the same address as Mr Lee.
§ On 29 April 2003, the original decision maker reconsidered his decision and affirmed it. He advised the applicant by phone on the same day.
§ An Authorised Review Officer (ARO) spoke to the applicant on 9 May 2003 and recorded that Mr Lee’s caravan is about 40 yards from that of the applicant and that the applicant spends a fair amount of time with Mr Lee helping him.
§ The ARO considered the matter, referred to subsection 954(1) of the Social Security Act 1991 (“the Act”) and section 1.1.C.10 of the Guide to the Administration of the Social Security Act, and affirmed the decision to reject the claim. The ARO advised the applicant of the decision on 9 May 2003.
§ The applicant applied to the SSAT for review of the decision on 14 May 2003.
§ On 3 June 2003, the SSAT found that the applicant provides daily care to Mr William John Lee, that the applicant had applied for carer allowance on 19 March 2003 and that the applicant and Mr Lee live in separate caravans.
§ The SSAT decided that the situation does not meet the legislative requirements of subsection 954(1) of the Act and affirmed the decision to reject the applicant’s claim for carer allowance in respect of Mr Lee.
Legislative Framework and Issues
5.Section 954(1) of the Act relevantly provides:
“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 received 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.”
6. All of the criteria in section 954(1) must be satisfied.
7. This matter turns, in the first instance, on whether the applicant meets the requirements of section 954(1)(d) of the Act as set out above.
Applicant’s Evidence and Submissions
8. The applicant was born on 10 August 1935 and lives in retirement with his wife who is disabled, at 34 Ferry Reserve, Brunswick Heads.
9. Ferry Reserve is a large caravan park which caters for permanent and transient caravaners. The applicant is one of thirty permanent caravan dwellers and told the Tribunal he had been living in the park for about ten years.
10. It was the applicant’s evidence that Mr Lee, for whom he provides care, took up permanent residence some six years ago in a caravan separated from the applicant’s caravan by one other caravan. The applicant described these caravans as being in the front row, Mr Lee’s caravan being two from one end and his caravan being four from the same end. He said they both had patios on the side and the distance between the walls of his and Mr Lee’s caravan was 30 feet (not 40 yards as stated by the ARO). He said that he had arranged a telephone link with Mr Lee whereby all Mr Lee had to do to contact him was to push a button. He said that his phone and Mr Lee’s phone were separately listed.
11. With respect to the care of Mr Lee, the applicant told the Tribunal that Mr Lee was alcoholic and that he had suffered a stroke some four years ago as a result of which he needed assistance.
12. It was the applicant’s evidence that he assisted Mr Lee by doing all of his shopping, helping him to the showers, occasionally assisting him in dressing, helping him walk (which he could only do with help), cooking some of his meals, doing his banking (with power of attorney) and checking on him regularly including every evening and every morning. The applicant said that Mr Lee’s medical condition was getting worse and he was losing his memory.
13. When asked why he thought the decision under review was wrong, Mr Channells said he thought it was not fair that he should be denied a carer allowance when he was looking after Mr Lee and if he did not do so, Mr Lee would have to be put in a home at a far greater cost than the current arrangements. When the requirements of section 945(1)(d) were put to the applicant, he said he considered his and Mr Lee’s circumstances as equivalent to living in the same place and walking down the hall to see each other.
Consideration
14. There was no dispute that the applicant provides daily assistance to Mr Lee who is severely incapacitated.
15. The respondent has submitted that Mr Channels does not provide care and attention for Mr Lee in a private home that is the residence of both of them and therefore, pursuant to section 954(1)(d) of the Act, the applicant does not qualify for carer allowance in respect of Mr Lee.
16. In its consideration of this matter the respondent referred the Tribunal to:
§Re Jackson and Department of Family and Community Services [2000] AATA 636;
§Re Snell and Department of Family and Community Services [2002] AATA 135; and
§Re Brown and Secretary, Department of Family and Community Services [2003] AATA 475.
17. In Brown (supra), the applicant and the carer lived in separate residences some considerable distance apart and clearly did not live at the same address. The applicant’s claim was not successful because, as the Tribunal noted, section 954(1) of the Act must be applied and there is no discretion to do otherwise.
18. In Jackson (supra), the applicant lived in a residence and the care receiver (the applicant’s mother) lived in a flat next door, which the applicant owned (on separate title). It was noted that the Department’s Guidelines stated that a granny flat or other dwelling attached to the home of the carer would meet the requirements of the legislation, as would a separate dwelling within the same property boundaries and in the immediate vicinity of the carer’s dwelling. In that case the Tribunal accepted the Department’s submission that the properties which are separate buildings on separate titles, next door to each other and connected by a gate cannot, together, constitute one home. In so doing it should be noted that the Tribunal commented that Departmental policy is but guidance for Departmental officers and the legislation itself is paramount. The Tribunal referred to the matter of Kinsey v Secretary, Department of Social Security (1999) 20 ALD 14 where the Court stated that the wording of the Act was not meant 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 in both residences. The Tribunal concluded the use of a singular “the residence” signifies that only one residence can be the residence of the person and the carer receiver for the purposes of the Act.
19. In Snell (supra), the carer and care receiver were living in separate but adjoining residences. The carer agreed that she realised that she did not meet the requirements nominated in section 954(1) of the Act because she (as carer) and Mr and Mrs Snell (as carees) did not reside in the same residence. However, she argued that living next door should be considered as appropriate geographic arrangements for carer and caree, as the same caring responsibilities and activities can be undertaken as if they were living in the same residence, with the carer and caree retaining a sense of relative independence.
20. The Tribunal found that the applicant does not meet sub-section 954(1)(d) of the Act. In so doing the Tribunal stated:
“In the particular circumstances of this matter the Tribunal expresses the view that such a finding, it being the necessary consequence of the legislation, is in many ways an unfair outcome for the Applicant, in that the geographic relationship in the Act clearly excludes such circumstances where two separate side by side residences are maintained by the respective parties. This may well include circumstances where two residences are maintained on a block (separate and discrete flat), where carer and caree are in two adjacent units or flats, as well as the circumstances existing in this matter.
The Tribunal considers that the geographic definitional requirements, that both the carer and caree live in the same residence, impose a seemingly unfair and a less than opportune domiciliary environment in which the carer and caree must relate. This is particularly so where the requirement for maintaining relative independence for the elderly is interfaced with the requirements and demands of a family with three young teenage children. The Tribunal respects the need for relative certainty in decision making on such issues, but believes certainty should relate to the need for care, which can be objectively defined and assessed, with some flexibility where it can be established that the carer is domiciled adjacent to the carees as well as where the carer and caree are domiciled under the one roof.
Nevertheless, despite the comments made, the Tribunal does conclude that the Applicant does not satisfy the qualifications for a carer’s allowance in relation to the care she provides for her parents-in-law, as the carer and carees do not reside in the same private home.”
21. In the matter before this Tribunal, the Tribunal is of the view that the comments in Snell (as set out above in paragraph 20) apply equally as well.
22. However, while accepting the applicability of the above comments, it is not the role of this Tribunal to do otherwise than apply the provisions of the relevant legislation. Any remedy for an applicant’s dissatisfaction with the law, as it stands, is not a matter for this Tribunal. It is for Parliament to enact the law and for the Tribunal to apply the enacted law.
23. During the formal proceedings of the hearing, Mr Channells made reference to a recent case in Tasmania in which he thought carer allowance had been taken away from a carer after many years of payment. Mr Channells was unable to provide further details of this case. Subsequent to the hearing, the respondent has referred the Tribunal to the matter of Re Jordan and Secretary, Department of Family and Community Services [2003] AAT 816 which appears to be the case referred to by Mr Channells. Regrettably, this case provides no assistance in support of Mr Channells’ claim, rather it reinforces the need for care to be provided in a private home that is the residence of the care provider and the care receiver for the provisions of section 954(1)(d) to be met. In Jordan (supra) the Tribunal specifically referred to section 954(1)(d) not being satisfied in a caravan park setting where the carer lives in one unit and the care receiver lives in another, even if immediately adjacent.
24. Subsequent to the hearing, the respondent has drawn the Tribunal’s attention to a recent media release from the Minister for Family and Community Services establishing a new organisation called National Family Carers Voice, charged with providing the Government with advice on how the Government can better address family carer issues. In the release the Minister stated:
“Carers are the unsung heroes of Australian society. The effort, devotion and support that they provide cannot be praised enough… Over the next two years, I am confident that the National Family Carers Voice will be able to enrich our understanding of what it means to be a family carer. I look forward to receiving their advice on how we can help make a real difference to the lives of family carers and the people they look after.”
25. As already indicated, the remedy for legitimate concerns about the fairness of existing legislation is not a matter for consideration by this Tribunal. However, without limiting any course of action that Mr Channells may wish to take, it would seem to be appropriate for him to put his own circumstances and his concerns to the new organisation set up by the Minister.
26. The Tribunal, after careful consideration of all of the material before it, and the submissions of both parties is satisfied that the applicant does not meet the qualifications required by section 954(1)(d) of the Act and is therefore not qualified for carer allowance.
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 12 December 2003
Date of Decision 23 January 2004The Applicant appeared in person
For the Respondent Ms Wallis-Dunn, Departmental Advocate
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