Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 582
•20 August 2013
[2013] AATA 582
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1487
Re
Confidential
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 20 August 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Carer payment – Statutory definition of “carer” – Meaning of “constant care” in Guide to Social Security – Significance of Carer Recognition Act – Requirements for constant care not met by applicant – Decision under review affirmed.
LEGISLATION
Carer Recognition Act 2010 (Cth) ss 3, 5
Social Security Act 1991 (Cth) ss 197, 198
CASES
Confidential and Secretary, Department of Families, Community Services and Indigenous Affairs [2010] AATA 551
Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145
Milne and Secretary, Department of Families, Community Services and Indigenous Affairs [2008] AATA 698
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419Secretary, Department of Social Security and Retallack [1988] AATA 424
SECONDARY MATERIALS
Guide to Social Security Law (Version 1.196)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
On 7 June 2012, the applicant lodged a claim with Centrelink for the carer payment which is payable under the Social Security Act 1991 (Cth) (“the Act”). On 19 July 2012, Centrelink rejected the claim. That decision was affirmed by an authorised review officer on 24 October 2012 and, in turn, by the Social Security Appeals Tribunal on 27 February 2013.
LEGISLATION AND ISSUES
The applicant’s claim was in relation to care she provides for her mother (“M”). It is not in dispute that M is a disabled adult as that term is defined in s 197(1) of the Act to read:
disabled adult means a person aged 16 or more who:
(a) has a physical, intellectual or psychiatric disability; and
(b) is likely to suffer from that disability permanently or for an extended period.
The qualifications for a carer payment are set out in s 198 of the Act. The only aspect of that provision of relevance in this matter is sub-paragraph 198(2)(a)(i) which reads:
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—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
…
It is not in dispute that M has been assessed and rated under the Adult Disability Assessment Tool and given a score above 25. The issue is whether the applicant provided constant care for her on and from 7 June 2012. In s 197(1) of the Act, the term care is defined to include “attention and supervision”. There is no definition of constant care in the Act. However, the term is defined in the Guide to Social Security Law (“the Guide”) which is published by the respondent to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[1] At s 1.1.C.310, the Guide gives the following definition of constant care:
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 is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.
[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
The issue for determination is whether the applicant provided constant care for M at the time of and since her claim for carer payment.
SUBMISSIONS
The applicant submitted that the threshold for satisfying the constant care requirement was 25 hours per week. In support, she referred to s 3.6.4.10 of the Guide which reads:
Working credit participants
A CP recipient who has a working credit balance and who ceases to provide constant care for more than 25 hours a week and part or all of the cessation is due to taking up or increasing paid work, is treated as still being qualified for the period it takes to run down their working credit balance. This allows the person to benefit from their working credit balance, and assists them in their transition to work.
The applicant submitted that she provided care for at least 27 hours per week when the limited range of matters acceptable to the respondent was considered and that this rose to more than 40 hours per week when a wider range of contributions were taken into account. She submitted that the approach of the respondent was not consistent with the terms of the Carer Recognition Act 2010 (Cth) (the Carer Act), in particular, s 5 thereof which reads:
5 Meaning of carer
(1) For the purpose of this Act, a carer is an individual who provides personal care, support and assistance to another individual who needs it because that other individual:
(a) has a disability; or
(b) has a medical condition (including a terminal or chronic illness); or
(c) has a mental illness; or
(d) is frail and aged.
The applicant noted that the provision include support and assistance as well as personal care.
Mr McQuinlan submitted that the 25 hour threshold referred to in the Guide at s 3.6.4.10 was not related to the applicant’s situation as it was applicable to persons already in receipt of the carer payment and who were in transition to employment. This, he submitted, was because the entry in the Guide allowed for some reduction in carer responsibility to enable the transition to occur.
Mr McQuinlan referred to several Tribunal cases to demonstrate that constant care requires: something more that episodic or spasmodic care;[2] significant assistance every day;[3] a consideration of the amount of time the carer is “freed up” every day;[4] the extent to which the carer has a regular paying job to take on the carer responsibility;[5] a much higher than normal level of attention, supervision and personal support and a degree of resoluteness in the duration of that oversight required for the care receiver.[6] He submitted that the amount of constant care, as defined, provided by the applicant was less than that which would equate to a normal working week and that, in particular, much of her contact with M was more in the nature of frequent companionship which was not equivalent to care.[7] In any event, he submitted, the applicant was able to undertake a significant level of work of a voluntary and remunerated nature each week such that the definition of constant care was not met in her circumstances from June 2012.
[2] Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145.
[3] Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419.
[4] Secretary, Department of Social Security and Retallack [1988] AATA 424.
[5] Milne and Secretary, Department of Families, Community Services and Indigenous Affairs [2008] AATA 698.
[6] Confidential and Secretary, Department of Families, Community Services and Indigenous Affairs [2010] AATA 551.
[7] Ibid.
Mr McQuinlan submitted the decision under review ought be affirmed.
EVIDENCE
The applicant
The applicant and M live close to each other in a small country town. Each has her own house and lives alone. The applicant sees M each day of one week and on six days of the alternate week. She has other responsibilities as well. One of these is a work commitment averaging three hours per week. She was a bookkeeper for many years and maintains her skill base in that regard by working for six hours each second Monday in the Brisbane premises of one of her former clients. The position occupies 12 hours of the day which includes three hours travel in each direction and six hours in the Brisbane office. She leaves her home at 4 am and visits M on her way home for an hour or two to provide any assistance required at that time. A second responsibility relates to the obligations imposed upon her by her job network provider to remain qualified for Newstart Allowance. She must undertake 50 hours per fortnight of voluntary work. The applicant completes this by carrying out work in and for the museum and the library in her town. She attends the library from 10 am until midday on each of the six days per week that it is open and makes up the remaining 13 hours per week at the museum when it is open or in doing museum-based work at her home.
Typically, apart from the commitments noted above, the applicant spends five hours on Mondays, Tuesdays, Thursdays, Fridays and Saturdays each week with M at M’s house in the afternoon from when she finishes her voluntary work at the library until approximately 6 pm. On Wednesdays, M attends respite care for five hours until 2.30 pm and the applicant spends two to three hours with M on return to the house. She sometimes has to provide care on Wednesdays when M is not well enough to attend respite care. On alternate Sundays, she spends five hours with M because she undertakes voluntary work at the museum on one Sunday each fortnight. Assistance is provided to M by a home nursing service for showering on one day per week. She estimated that her care amounted to some 27 hours each week in caring for M.
In her Claim Form for carer payment, the applicant advised that her carer responsibilities commenced in June 2011. She made no estimate of the number of hours during which she provided care for M. She denied any difficulty or problem with M’s transfers from her bed or chairs; hearing others; being independent at night; bladder or bowel control; toileting; eating; taking care of her own medication and treatment; communicating her feelings; knowing where she is; knowing the time of day; remembering things in a given day; wandering; being rude or harmful to others; damaging property; displaying inappropriate emotions or behaviour; or being harmful to herself. She described M as usually being able to understand what others say but as often withdrawing from contact with others. She also described M as needing help to move around the house, with dressing and with grooming and as having falls sometimes. The applicant also noted that M “always” has difficulty seeing clearly. In her evidence, she explained that this was due to cataracts and to dryness of eyes associated with her arthritis which always affected her vision to an extent. However, she said that M’s vision was still sufficient for her to maintain a driver licence which she uses in driving her own car from time to time for short journeys in the town.
In the absence of a minimum number of hours in Centrelink documents, the applicant submitted that the 25 hour reference in the Guide should be adopted as the threshold for constant care. The applicant has given varying assessments of the amount of time she has spent each week tending to M’s needs. At the same time as she lodged her claim for carer payment, the applicant also claimed carer allowance. She completed a Carer Allowance Questionnaire on 4 June 2012 in which she declared that she provided personal care for M for 27 hours per week. This comprised 27 hours assisting her with mobility (preventing falls, moving around the house, to and from bed and on stairs); 5.5 hours with personal hygiene (showering, grooming, dressing, cleaning teeth, toileting); 1 hour with eating and drinking (ensuring she eats/drinks, mashing and juicing food, feeding, preventing choking); 1 hour communicating (explaining and relaying information, reading and signing documents, using equipment); 0 hours with treatment; 8 hours with safety and behaviour (removing from dangers, monitoring behaviour).
The applicant said that she does many things for M which were excluded from the care options nominated in the questionnaire. These included the provision of mental stimulation through watching television with her, solving puzzles and completing quizzes. Also excluded were items such as completing M’s shopping, preparing meals for her, doing dishes and general cleaning as well as yard and garden maintenance. The applicant considered that, if all of these matters were taken into account, her carer responsibilities would extend to more than 40 hours per week and said this significantly impacted on her capacity to be in full-time employment. In that regard, she referred to s 1.2.5.20 of the Guide which reads:
1.2.5.20 Carer Payment (CP) - Description
Objective of CP
CP is a fortnightly income support payment for people who are unable to support themselves through substantial employment due to the demands of their caring role.
M has a Health and Community Care day on Wednesdays during which she engages in card games and quizzes which provide stimulus to the memory. The applicant said that this should be treated as caring on her part when she undertakes those activities with M. The applicant said that there was no assistance provided by any other family member. She also said that her estimates of care duration were in relation to M’s “good days” and that extra assistance was required on “episodic bad days”.
Medical evidence
M’s general practitioner completed a medical report on 5 June 2012. He described M’s disabilities as physical in nature, comprising rheumatoid arthritis and osteoarthritis. He advised that she was not cognitively impaired, showed signs of depression sometimes and demonstrated withdrawal from social contact most of the time. The doctor noted that she displayed no memory loss, aggression or disinhibited behaviour. His opinion was that M was continent in relation to bowel and bladder and independent in relation to grooming, toilet use, and mobility. He noted that she needed assistance in cutting food and spreading butter; some assistance in bed transfers, dressing and using stairs; and was dependent when bathing. His opinion was that M needed help on a daily basis.
CONSIDERATION
I have noted the reference by the applicant to the Carer Act. It provides a broad definition of “carer”[8] which is consistent with the object of that Act, set out in s 3 thereof, to “increase recognition and awareness of carers and to acknowledge the valuable contribution they make to society”. It is expressed in general terms and I am satisfied that persons in the applicant’s position are embraced by its terms. To that end, I acknowledge that the applicant provides a valuable contribution to her family and to the community in which she and M live. However, the Act is more specific than the Carer Act in its operation and makes specific provision for the circumstances in which a person may qualify for the various social security payments, in this case, the carer payment. I do not accept that there is inconsistency between the two Acts and the Tribunal is required to give effect to the terms of the Act in assessing the applicant’s eligibility for carer payment in respect of her assistance to M.
[8] See para 7 (above).
In her written statements about her role as a carer, the applicant has used 25 hours as the relevant threshold to meet the requirements for constant care under the Act. However, I accept Mr McQuinlan’s explanation of the relevance of the reference to 25 hours in s 3.6.4.10 of the Guide and am satisfied that the relevant test is that expressed in s 1.1.C.310 of the Guide which is set out above.[9] 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 she is unable to undertake substantial employment. Further, I accept the analysis given by Mr McQuinlan of the various Tribunal cases concerning the interpretation of the definition of “constant care” as well as the distinction between care and companionship.
[9] See para 4.
Some of the forms of assistance provided by the applicant to M are not consistent with the evidence of M’s doctor concerning M’s disabilities which he described as rheumatoid arthritis and osteoarthritis. He denied the presence of memory, behaviour or incontinence problems and considered M to be independent in relation to grooming, toilet use, and mobility. While his opinion was that M needed help on a daily basis, this was in respect of assistance with some aspects of taking meals, in bed transfers, in dressing in bathing and using stairs. Only some of the hours claimed by the applicant as constituting care were rendered in respect of those types of activities. Some hours on each day of her attendance at M’s house each day have been dedicated to watching television and puzzle solving with M for the purpose of improving M’s memory. I am satisfied that this constitutes companionship for M rather than care, especially as memory problems have not been identified by M’s doctor as a concern. Neither is it the case that daily care is provided by the applicant as it seems that M is usually left to her own devices on alternate Sundays and for most of the alternate Mondays when the applicant undertakes her remunerated work in Brisbane. The responsibilities of caring for M have not occupied a period which would constitute a normal working day and have allowed her to engage in at least 56 hours each fortnight in work, albeit mostly of a voluntary nature. In assessing M’s need for constant care, I consider it to be highly relevant that she continues to hold a current driver licence and that she owns and uses a car from time to time to negotiate trips into the town.
I am reasonably satisfied that, on and from 7 June 2012, the applicant has not provided constant care to M as provided for in s 198 of the Act and that, accordingly, she is not qualified for the carer pension.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ........................................................................
Associate
Dated 20 August 2013
Date of hearing 7 August 2013 Applicant In person Advocate for the Respondent Rick McQuinlan, Departmental Advocate
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