Cody James and Secretary, Department of Social Services
[2014] AATA 802
•29 October 2014
[2014] AATA 802
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2188
Re
Cody James
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 29 October 2014 Place Brisbane The Tribunal affirms the decision under review.
...............................[Sgd].........................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Carer Payment – Whether eligible to receive Carer Payment – Whether constant care provided – Whether Applicant qualifies for Carer Payment – Decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 197, 198
Social Security (Administration) Act 1999 (Cth)
Adult Disability Assessment Determination 1999 (Cth)
CASES
Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582
Milne and Secretary Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 689
Re Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145
Secretary, Department of Social Security and Maria Retallack [1998] AATA 424
SECONDARY MATERIALS
Guide to Social Security Law, Version 1.207
REASONS FOR DECISION
Dr M Denovan, Member
29 October 2014
Cody James (“the applicant”) is a high school student. As well as attending school, he cares for his mother, Miss Zemek, whom has health problems secondary to a motor vehicle accident (“MVA”). Mr James lodged a claim for Carer Payment on
31 January 2014. Centrelink determined that the applicant did not qualify for
Carer Payment. Mr James requested review of that decision. An Authorised Review Officer (“ARO”) affirmed the original decision, as did the Social Security Appeals Tribunal (“SSAT”) on 9 April 2014.
On 28 April 2014 the applicant applied to the Administrative Appeals Tribunal for review of the SSAT decision.
The rules for determining eligibility for Carer Payment are contained in
ss 197 and 198 of the Social Security Act 1991 (Cth) (“the Act”). To be eligible to receive Carer Payment a person must, among other things, provide ‘constant care’ to a person who meets the legislative requirements to be a care receiver. The Secretary accepts that Miss Zemek satisfies the requirements set out in the relevant section of
the Act, ss 198(2)(i), and qualifies to be a care receiver.
The Secretary contends that the applicant does not provide constant care for Miss Zemek and therefore, he does not qualify for Carer Payment.
I must decide whether the applicant provides constant care to Miss Zemek.
APPLICANT’S EVIDENCE
Mr James gave evidence by telephone at the hearing; he was in a room located in his general practitioner’s surgery (Dr Stark) accompanied by his mother at the time. It was apparent Miss Zemek was attempting to assist Mr James with answering questions on more than one occasion. She was asked by the Tribunal to allow Mr James to answer questions directed to him. The following is what he told the Tribunal.
In 2013 he was studying six subjects (grade 11), however he is now only studying five subjects as he dropped a subject called ‘Health and Physical Education’. He passed everything in grade 11, and achieved some B’s, and B+’s in some subjects.
He was working as a butcher’s assistant from 3.00 pm to 6.00 pm three days a week for about 18 months. He gave the job up to help care for his mother. He also had to give up his sporting activities to care for his mother. He was playing football for a private club. The usual football season is from March to September and he was required to attend training three nights a week, and a game once a week. If the game was not a home game, the club organised a bus to transport the players to the venue.
He has his ‘P’ plates and drives his mother’s car to work. He was able to complete the 100 hours necessary to get his driver’s licence with the assistance of his father, his mother, and his brother (now deceased). Prior to obtaining his licence in February 2014, he would ride his bike to school, and sometimes his mother would drive him to school. She was able to drive Mr James to school after the MVA. She said she would sometimes get out of the car at the school, walk around a bit, then return to the car. Mr James’ school is three and a half to four kilometres from his home. He attends all of his classes, and hopes to join the Navy when he leaves school.
Mr James lives with his mother. Also residing in the same house is his sister-in-law (his deceased brother’s fiancée) and her son, Mr James’ 10 year old nephew. When he is unable to be home to assist his mother, his sister in law helps out. She is a single mother and does not work.
As well as attending to the housework, the laundry and the lawn mowing, he helps his mother get in and out of bed. When she showers, he helps dry her legs and dresses her. He assists her washing and drying her hair. When she asks, he shaves her legs, and paints her toenails. He helps her out of chairs, and when necessary he ties her shoe laces. He helps with his mother’s medication. When I asked specifically what his mother takes,
Miss Zemek repeatedly answered for Mr James. Mr James admitted he was uncertain of the exact types of medication that his mother took; when she needs her medication he brings them to her, or he makes sure they are within her reach.
When asked about why in 2014 he cut back his attendance at school from 28 hours a week to 16 hours, he initially replied it was because a Centrelink delegate or social worker told them that cutting back would help him qualify for Carer Payment. Later in the hearing at this Tribunal, Mr James corrected his answer, and said he cut his school hours back to assist his mother, and the social worker told them that he could cut his school hours back if his mother needed extra care. He said when he is at school his
sister-in-law provides the care necessary for his mother. However, his sister-in-law does not do house work. Mr James agreed his mother does not need care all the time, just sometimes.
Mr James was asked why he needed to cut his school hours back, given his sister-in-law does not work, and could presumably provide care to his mother whilst he attends school. He said that she is attending a course and unable to be home all the time he is at school.
Evidence of Dr Stark
Dr Stark provided medical reports in support of Mr James’ application for
Carer Payment. It is on the basis of Dr Stark’s reports that Miss Zemek has been assessed as being qualified to be a care recipient.
Dr Stark appeared before the Tribunal by telephone. The follow is what he said.
Miss Zemek suffers from tears in her spinal ligaments as a result of the MVA. No one knows what her prognosis is. She requires exercise, physiotherapy and pain management. She has been reviewed by a number of specialists including orthopaedic surgeon
Dr Bill Ryan and neurologist Dr Scott Campbell. She has difficulty performing any movements that require her to bend forwards, such as tying shoe laces, and getting in and out of chairs. Dr Stark has two types of chairs in his surgery, soft and hard. He does not allow her to sit in the soft chairs, as she cannot get out of them. She can get on and off the hard chairs without assistance. She cannot sit for more than 10 minutes due to discomfort. He said she can drive a car short distances.
Dr Stark was asked about his responses in the medical report referred to above.
Question six refers to the patient’s ability to transfer from bed to chair, and back again. Dr Stark has ticked the box which indicates that Miss Zemek was independent with transfers. He said that was a mistake. He said she is in need of some minor help in transfers.
LEGISLATION
The legislation relevant to this matter is contained in the following legislative provisions:
·The Act;
·Social Security (Administration ) Act 1999 (Cth) (“the Administration Act”);
·Adult Disability Assessment Determination 1999 (Cth) (“the Determination”).
Section 198 of the Act sets out the qualification criteria for Carer Payment. One of the qualifying criteria relevant to the applicant’s claim is based on the care given to a disabled adult. That disabled adult must have 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.
As stated above, the Secretary accepts that the applicant’s mother has been rated under the Adult Disability Assessment Tool and been given a score of 30.5 with a total professional questionnaire score of 20, and therefore satisfies ss 198(2)(i) of the Act.
Another qualifying criterion is that the applicant must personally provide ‘constant care’. ‘Constant care’ is not defined in the Act. As stated, the respondent contends the applicant does not provide constant care for Miss Zemek, and therefore does not qualify for
Carer Payment.
CONSIDERATION
Confusion arose in this matter because the reasons for rejecting the claim given by the delegates of the respondent were misleading.
In the letter to Mr James from Centrelink dated 6 February 2014, it was stated:
You do not qualify for Carer Payment for [Miss] Zemek because you spend more than 25 hours a week away from care to undertake employment, voluntary work, studying or training.
In the ARO’s decision dated 5 March 2014, the following explanation for rejecting the applicant’s claim was given:
As your study keeps you are [sic] away from the care situation for more than twenty-five hours per week you cannot be taken to be providing constant care to [Miss] Zemek.
Further on the same page, the ARO wrote that he had concluded that the care provided by the applicant was not of a type that meets the requirements for the payment of
Carer Payment.
Anyone without an understanding of the legislation, after reading either of these decisions, could easily conclude that all that the applicant needed to do to qualify for Carer Payment was to reduce the number of hours he was studying to less than 25 hours a week.
I think that is precisely what happened in this case. Mr James reduced the hours he attended school after receiving the decision to reject his application for Carer Payment.
I have no doubt the reason for doing this was exactly as he first told me, that is, because he and his mother were advised by either a Centrelink employee or a social worker that a reduction in his school attendance would allow his claim to succeed. That is also the explanation he gave the SSAT.
Unfortunately for the applicant, reducing the number of hours he attends school has not advanced his case. As the SSAT observed, the legislation does not refer to studying for less than 25 hours a week as a qualifying criteria for Carer Payment. Rather, what is provided is the provision of ‘constant care’.
Whilst no definition of constant care is provided in the legislation, there is discussion of what constitutes constant care in the Guide Social Security Law[1] (“the Guide”). Whilst the Guide is not binding on this Tribunal, it will be followed unless there are cogent reasons for not doing so. This assists the Secretary and the Tribunal to make decisions that are consistent and reliable.
[1] Department of Social Services, Guide to Social Security Law, Version 1.207, 19 September 2014, online: >
The Guide provides the following definition of constant care at 1.1.3.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 [Carer Payment] is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.
‘Constant care’ has also been the subject of many matters before this Tribunal. In the matter of Re Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs[2] it was found that care must be “something more than episodic or spasmodic care and require a significant degree of daily care for the individual involved”.
[2] [2007] AATA 1145 at [38].
In the matter of Milne and Secretary Department of Families Housing Community Services and Indigenous Affairs,[3] Senior Member McCabe stated:
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.
[3] [2008] AATA 689 at [7].
As observed by Senior Member in the same matter, the benefit is paid to replace 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.
In the matter of Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[4] Senior Member Kenny responded to submissions that the relevant qualification threshold is engaging in 25 hours of care per week:
[The] test is not expressed in terms of specified number of hours of care but whether care is provided for a significant period of each day such that the carer she is unable to undertake substantial employment.
[4] [2013] AATA 582 at [19].
There are numerous hardworking committed members of the community who, after attending to demands of their paid employment, selflessly commit much of the remainder of their time helping elderly and disabled friends and family. The benefit to the care receivers, as well as to the public purse is obvious. Yet these people providing care will not qualify for Carer Payment, irrespective of how many hours they attend the care recipient. As identified in previous matters before the Tribunal, Carer Payment is for those who are unable to maintain substantial employment (or study), as a result of the care they provide. If the needs of the care recipient are flexible enough that the carer can be attended to outside the times when the carer is required to work or study then
Carer Payment is not payable.
Performing household domestic duties, cooking, cleaning, attending to the laundry and other similar activities are not of the nature of duties required to satisfy the requirement that constant care is provided. These are tasks that can be completed when it suits the care giver. Domestic duties, assisting with transport to appointments, assisting with paper work, making sure bills are paid, organising domestic maintenance and repairs, and providing excursions and outings, are all types of activities that can be done at the convenience of the carer, usually outside of the hours they must attend work. These tasks, although sometimes time consuming, do not require the constant presence of a care giver.
The type of care necessary for Carer Payment is that which is determined by the medical needs of the care recipient. Constant care does not need to be active, it can be supervised, for example, a care receiver may have dementia and require constant supervision to prevent them wandering. What constitutes constant care will vary from case to case; the common element is the fact that the care is needed on more or less continuous basis. It is not necessary for a carer to be present 100% of the time in order to qualify for
Carer Payment. It is a question of how much of the carer’s time is occupied in the role of caring. If the needs of the care recipient are flexible enough to allow a carer to engage in substantive employment or study, the care giver will not qualify for Carer Payment.
An important consideration is how much time the care giver has control over, and whether they could attend to, the care recipient’s needs and still allocate sufficient time to attend to the needs of substantive employment or study. It is only when the needs of the care recipient are such that the care giver is unable to maintain substantial employment or study that it is appropriate they receive Carer Payment.
I recognise that Miss Zemek meets the legislative test to be deemed a person requiring care, however the evidence from Mr James is that the nature of care he provides is not the type of care necessary to be meet the accepted requirements of constant care.
Mr James is a great help to his mother. He does far more than the average child of his age would do. The family suffered the tragic death of his brother recently, as a result
Mr James is the ‘man of the house’, and has the responsibilities greater than the average person of his age. He attends to the housework, and domestic chores including the cooking, and the mowing of the lawn and doing of laundry related tasks. All these activities are things that most adults who are engaged in full time employment or study, attend to outside of their working or studying hours. Many people who work full time perform the same or similar tasks for family members regardless of whether the family members are sick or disabled. For example, there are many mothers who work full time and also attend to house work, cooking, gardening, and driving their dependent children around to social and sporting activities. Carer Payment is not designed to compensate those who perform normal household duties, even if the responsibility to perform those duties would not ordinarily be theirs. The majority of the care that Mr James provides for his mother fits into this category.
Miss Zemek may need some assistance with showering and washing her hair, shaving her legs, and painting her toe nails. These activities are performed at the most once a day, and do not necessitate constant care. He may well help her get out of bed in the morning, however that is a once a day activity that does not require care on a more or less continuous basis. It was Miss Zemek’s evidence that she can get into and out of her computer chair and the car seat unassisted. This is consistent with the evidence of
Dr Stark who said she was able to get out of hard chairs unassisted at his surgery. Although the social report stated Mr James assists his mother with her medications, it was clear from the evidence provided at the hearing that Mr James has a very limited knowledge about his mother’s medication and is certainly not in a position to supervise how much she takes and ensure she has taken the correct tablets or the correct dose. I conclude his role is limited to bringing her medications to her when she is sitting down in a soft chair or in bed. There are clearly many alternate ways to ensure Miss Zemek has access to her medications whilst Mr James is not present.
Even though Mr James has reduced the hours he attends school, the time he spends with his mother is determined by his school timetable, not by her needs. Although he claims his sister-in-law provides care for his mother when he is unable to be present, there is no evidence to support that claim. If his sister-in-law is engaged in study outside the home as claimed, then she would likely also have a set timetable, and would not simply be able stay home whenever necessary to fill in the gaps created by the applicant’s absence. I do not accept that Mr James reduced his school hours because of his mother’s needs. Rather, I find that the reduction of school hours was due to his harbouring of a misguided belief that to do so would assist his claim for Carer Payment.
Carer Payment recipients are permitted in specific circumstances temporarily to cease caring and remain qualified for Carer Payment. A Carer Payment recipient may cease caring for not more than 25 hours per week (including travel time) to undertake training, education, unpaid voluntary work or paid employment. This is often referred to as the ‘25-hour rule’. I expect this is why the delegates of Centrelink chose to word the decisions rejecting Mr James’ claim as they did. The logic is that if a recipient of
Carer Payment is allowed no more than 25 hours a week away from their role as carer, than a person who spends more than that time cannot logically qualify for the payment. Whilst the logic is reasonable, the implication in the wording of the decisions is regrettable.
The matter of Secretary, Department of Social Security and Maria Retallack[5] dealt with circumstances similar to this case. In that matter, the Tribunal held that a mother was not providing constant care for her daughter because of the child’s attendance at school between 8.30 am and 3.00 pm on most week days. In coming to this conclusion, the Tribunal considered the legislative intention behind the Carer Payment provisions. In considering whether constant care was being provided, the Tribunal considered the fundamental question is one of the amounts of time the carer is “freed up", or has allocated time, for other things such as education or substantial employment.
[5] [1998] AATA 424.
Mr James is freed up to the extent that he could attend full time study, if he chose to do so. He was doing so until January this year. It is not enough to be regularly in the company of a care recipient. Constant care is only given if the carer’s presence is necessary, and is related to needs generated by the medical conditions of the care recipient. For the reasons given, I find that Mr James does not provide care of a nature that could be described as constant. He therefore does not meet the legislative requirements for Carer Payment.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member .........................[Sgd]...............................................
Associate
Dated 29 October 2014
Date of hearing 16 September 2014 Applicant In person Advocate for the Respondent Nick Warren, Department of Human Services
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