CLEMENTE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2010] AATA 831

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2006

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROSETTA CLEMENTE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member K Bean

Date27 October 2010

PlaceAdelaide

Decision The decision under review is affirmed.

..............................................

K Bean
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – Carer allowance – Care not provided in private home as required by legislation – Decision under review affirmed.

Social Security Act 1991, s 954A

REASONS FOR DECISION

27 October 2010   Senior Member K Bean

1.      The applicant, Mrs Clemente, is currently in a very difficult situation.  Her mother, Mrs Maria Belfari, is 82 and was permanently admitted to a nursing home on 10 December 2009.  Prior to that, Mrs Clemente had been caring for her at home.  Contrary to what would usually be expected however, she says that following her mother’s admission to a nursing home, the demands upon her have, if anything, been greater.

2.      According to the information supplied by Mrs Clemente, which was not disputed by the respondent, Mrs Belfari has suffered from paranoid schizophrenia since approximately 1968 and has been cared for by her family for most of her life.  In addition, Mrs Belfari is legally blind and is now also suffering from dementia.  As a result of all of these difficulties, Mrs Belfari is reluctant to receive food, medication or care from anyone other than Mrs Clemente and this situation has not improved during the time she has lived at the nursing home.  Unfortunately, Mrs Belfari remains paranoid in her attitude towards anyone other than her daughter who attempts to provide care to her, often apparently believing that the person is trying to poison her or harm her in some other way.

3.      The practical consequence of this situation for Mrs Clemente is that she says she is currently required to travel twelve kilometres to the nursing home four to five times per day, with her first trip to the nursing home commencing at approximately 5:30am.  She says she usually does not return home from her last trip to the nursing home until between 7:30 and 8pm.  She believes that if she did not travel to the nursing home to provide care to her mother as she is currently doing, her mother’s continued survival would be under threat. 

4.      An experienced mental health nurse who accompanied Mrs Clemente to the hearing, Ms Andrea Carly, also indicated to the Tribunal that Mrs Clemente’s situation was unique in her experience and that it did not appear to be realistic to expect others to care for Mrs Belfari at this stage of her life.

5.      It is in these circumstances that Mrs Clemente has sought review by this Tribunal of the decision of the Social Security Appeals Tribunal (‘SSAT’), affirming the decision of an Authorised Review Officer to cancel her carer allowance from the date that her mother permanently entered the nursing home, namely 10 December 2009.

The issue

6.      The issue for this Tribunal is whether the decision to cancel Mrs Clemente’s carer allowance from 10 December 2009 was correct.

Legislation

7. The provision which is most relevant to Mrs Clemente’s circumstances is s 954A of the Social Security Act (the Act), which relevantly provides as follows:

“954AQualification for carer allowance—caring for a disabled adult in a private home not shared by the adult and carer

(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)the care receiver receives care and attention that meet the requirements in subsection (2); and

(e)the person is an Australian resident; and

(f)the person’s work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and

(g)neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.

(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

(e)must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.

Contentions

8. At the hearing, Ms Edwards for the respondent indicated that the facts put forward by Mrs Clemente, and outlined above, were not disputed by the respondent. However, she submitted that Mrs Clemente did not qualify for payment of carer allowance under the Act. She submitted that the main barrier to Mrs Clemente qualifying for carer allowance was the fact that the care she provides to her mother is not being provided in a private home, as required by s 954A(2)(d). In addition, although it appears she provides a large amount of the care which her mother receives, Mrs Clemente is providing care together with the staff at the nursing home, and there is no reason to suppose that those staff are not employed on wages that are at or above the minimum wage. Accordingly, she also does not satisfy s 954A(2)(c).

9.      Mrs Clemente did not seriously contest those submissions, simply alluding to the difficulty and unfairness of her situation.  She said that her life now is more difficult than it was when her mother lived with her, and she also has more expenses, given the need to travel to the nursing home.  She also alluded to the fact that she was seeking an “act of grace” payment.

Consideration

10. I am satisfied that the respondent’s submissions are correct and that it cannot be said that the care which Mrs Clemente is providing to Mrs Belfari is provided in a “private home”, as required by s 954A(2)(d). For the reasons advanced by the respondent, it appears that Mrs Clemente also does not satisfy s (2)(c) of s 954A, however it is unnecessary for me to determine that question, since it follows from the fact that she does not satisfy s (2)(d) that Mrs Clemente does not qualify for carer allowance and has not qualified for payment of that allowance since 10 December 2009.

Conclusion

11.     I am therefore obliged to affirm the decision under review.

12.     Before leaving the matter however, I should observe that, whilst it is not something in relation to which the Tribunal has any jurisdiction, Mrs Clemente appears to have a case which is deserving of consideration under s 33 of the Financial Management and Accountability Act 1997, which provides for act of grace payments to be made at the discretion of the Finance Minister.

Decision

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of K Bean

Signed:         .....................................................................................
  Associate

Date/s of Hearing  19 October 2010
Date of Decision  27 October 2010
Advocate for the Applicant       Self
Advocate for the Respondent   Julie Edwards
  Centrelink Advocacy Branch