CONFIDENTIAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 551
•23 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 551
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1126
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date23 July 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Carer payment – Did applicant provide ‘constant care’ – Care provided by applicant doesn’t amount to ‘constant care’ – Decision affirmed.
Social Security Act 1991 (Cth) s198
Social Security (Administration) Act 1999 (Cth) s 80
Re Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145
Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Department of Social Security and Retallack (1998) 3 SSR 50b
REASONS FOR DECISION
23 July 2010 Dr K S Levy RFD, Senior Member INTRODUCTION
1. The applicant in this case was granted approval to receive carer payment (CP) in 1999 for care provided to a visually impaired man (herein referred to as the care receiver (CR)). On 9 July 2009, Centrelink cancelled the CP. The Social Security Appeals Tribunal (SSAT) affirmed that decision on 21 January 2010. The applicant now appeals to this Tribunal for review.
APPLICATION FOR SUPPRESSION ORDER
2. At the opening of the hearing, an application was made for a suppression order so that the name of the applicant and that of the CR would be made confidential. The CR is severely disabled and has full-time employment in Brisbane. The CR has worked for a very long time, has only 3% sight in one eye and uses a guide dog for assistance.
3. I accept that there are reasonable grounds to suppress the name of the CR. I am not convinced that there are strong grounds to suppress the name of the applicant, but as there is a possibility that the CR could otherwise be identified if the name of the applicant was published, I think that consequently the name of the applicant may be suppressed also. The respondent offered “no objection” to that submission. After taking into account the relevant facts, I order that the name of the applicant and the name of the CR be suppressed.
ISSUE FOR DETERMINATION
4.The issue for determination by the Tribunal is:
Did the applicant provide “constant care” to the CR as provided for under s 198 of the Social Security Act 1991 (Cth) (the Act).
EVIDENCE
5. There were a number of documentary exhibits submitted by the applicant. These gave a detailed background of the applicant and the CR and the supportive relationship that has existed for almost two decades. The applicant has been the sole carer for over 10 years. The extent of the applicant’s role as carer and the time spent on various activities each week were set out in the documentary evidence.
6. The applicant also gave oral evidence at the hearing and was supported by his sister, who participated by telephone.
7. The applicant and the CR shared premises with a number of others in Tasmania in the 1980s. The applicant ultimately decided to move to the mainland and the CR decided that he too would leave Tasmania. While the applicant and his other flatmates originally helped the CR when they lived in Tasmania, as time passed the others moved on. When the applicant and the CR settled in Brisbane, they shared rented accommodation with others for a period of time. However, the CR purchased his own home about eight years ago and the applicant now lives in that residence. It is a highset house and the upstairs part of the house is rented by the applicant while the lower part of the house is occupied by the CR. The living arrangements are generally quite separate apart from shared use of the bath which is located upstairs. Otherwise the rest of the CR’s living is contained in the downstairs part of the house.
8. The CR works full-time doing administrative work. He is able to work full-time despite having only 3% sight in one eye. Even though he is capable of fulfilling the requirements of full time employment the CR still has some personal issues with which he requires assistance. For example, evidence was given to the SSAT that the CR is sometimes incontinent of faeces but not of urine. When this does occur it only occurs when the CR is asleep. This is a matter which was not dwelt on by the applicant at the hearing. It was regarded by the SSAT as being only an occasional issue.
9. The applicant rises at 4:30am, runs a bath for the CR and then wakes him at 5am. He told the Tribunal that he then waits in the bathroom until the CR finishes his bath. He said he needs to hand various items to the CR and help him after he finishes his bath.
10. The CR used to travel to work by bus with his guide dog. To facilitate this, the applicant would walk him to the bus stop and see him on the bus. The applicant now drives the CR to work which, from the southern suburbs to the city and return takes approximately one hour in both the morning and the afternoon. The applicant is taken to work at approximately 8am. The CR then leaves home in the afternoon at 4pm to go and pick up the CR for the return journey. However, it was conceded that the CR gets a lift home with co-workers on about 50% of occasions. In an exhibit outlining minimum care provided for the CR for each day of the week, it is shown that the applicant leaves home at 1pm to pick up the CR for medical appointments and to assist with mobility. He stated that he waits and looks after the guide dog while the CR is attending such appointments.
11. The applicant said that during the day while the CR is at work, he does shopping required for the CR (in particular buying clothes and shoes). He also tends to the payment of bills.
12. When the CR arrives home from work, the applicant makes a snack for the CR and often takes him for a walk without the guide dog or sometimes walks or exercises the dog. In particular he said that the CR likes to throw a ball for the dog but that his attendance is required in order to assist the CR to find the ball.
13. After that, the applicant prepares a cooked meal for the CR’s dinner. He also prepares medication and lunch for the CR for the following day and feeds the dog.
14. The respondent argues that the times claimed by the applicant are excessive and overlap or are duplicated in some respects. The respondent also pointed to conflicting evidence shown in the SSAT decision and the evidence given at this Tribunal. The applicant accepted during cross examination that despite his claim about minimum care in exhibit 4, that the CR does get a lift home with work colleagues on about 50% of his working days. The respondent then put it to the applicant that the times claimed are not a realistic reflection of the amount of time he spends directly supporting the CR. The applicant did not concede that this was the case. The respondent put to the applicant that he could undertake his morning duties in relation to the CR’s needs in 1.5 hours and could fulfil his care requirements in 1.5 hours in the afternoon.
medical evidence
15. The only medical evidence provided was a report by Psychiatrist, Dr T Mark Schramm. Dr Schramm was not called to give oral evidence by either party. Dr Schramm’s report reveals that the CR had a mood disorder and that the presence of the applicant had been of importance in getting the CR’s mental health to a much more stable state. However, he told the applicant and the CR that the applicant’s emotional support might not be sufficient to justify CP.
CONSIDERATION
16. The legal issue for determination is whether, at 9 July 2009, the applicant provided “constant care” to the CR in terms of s 198 of the Act.
17. The decision under review was to cancel the CP of the applicant under s 80 of the Social Security (Administration) Act 1999 (Cth). That section provides:
1.If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
a. who is not, or was not, qualified for the payment; or
b. to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
18. That section calls for a mandatory decision to cancel if the recipient of the payment was not qualified for it. Whether or not the applicant was qualified for the payment must be ascertained by reference to s 198 of the Act. That section requires that the applicant must:
(a) provide “constant care”;
(b) he must be provided “personally”;
(c)the constant care must be provided “to a disabled adult” (the care receiver) (s 198(2)(a)(i)); and
(d)it must be provided in a “private residence” that is home of the care receiver… (s 198(3)).
19. There are also requirements that provide that the care provider must be an Australian resident (s 198(4)); and must satisfy an income and assets test (s 198(5) of the Act).
20. No issue was taken by the respondent with respect to the applicant’s satisfaction of all of the requirements of s 198(2), (3), (4) and (5), with the exception of criteria (a) listed above, that is, that the care provided was not “constant care”.
what is “constant care”?
21. This term is not defined in the statute. For guidance it is defined in s 1.1.C.310- “Constant care” (CP) of the Guide to Social Security Guide:
Definition
A carer is said to provide 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.
…
Note 3: It is reasonable to expect that a carer (particularly a carer caring for a high care needs individual) will need to have a break from the caring role. It is open to the carer to utilise the 63 days of the temporary cessation of care provisions (3.6.4.40) for such breaks, and such cessation should not preclude the carer from being eligible for CP.
22. Section 3.6.4-60 of the Social Security Guide provides:
Care receiver in employment
If the care receiver is employed, whether on a full-time, part-time or limited basis such as in supported employment or employment under the SWS, their carer (1.1.C.40) may still qualify for CP. The level of care required and provided during the remainder of any 24-hour period determines whether or not the carer remains qualified for CP. The carer is required to provide constant care each day, which is roughly the equivalent of a normal working day of personal care, regardless of the time of day it is provided.
A carer providing a substantial level of care in the early morning and evening, and/or overnight, may not be capable of substantial employment when they are not providing care. However, the level of care they provide to the care receiver may make it possible for the care receiver to participate in the work force.
…
Determining continued qualification
If a care receiver enters employment, or attends education, training or a treatment facility, the carer’s qualification would only continue if the care receiver still requires a qualifying level of personal care and/or supervision and the carer provides the equivalent of a working day of personal care over the 24 hour period. The need to provide constant care at home would have to preclude the carer from undertaking substantial employment.
23. The scope of the term “constant care” can also be gleaned from previously decided cases of the Tribunal. In Re Department of Social Security and Retallack (1998) 3 SSR 50b, Senior Member Kiosoglous referred to a critical differentiating factor to be how much time was “freed up for other things” (at [24]). “Constant care” implies giving attention and support to a person due to age, maturity or capacity, which is “something more than episodic or spasmodic” (Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145).
24. “Care” is a term of common usage and denotes a concern, even with some anxiety and/or affection, for another and which must be regarded as a serious and responsible role of the care giver. But to add the adjective “constant” imposes a dimension of incessancy. It implies 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 CR.
25. Mr Nolan for the respondent also pointed out to me that “carer payment” is payable in lieu of other social security payments and is a recognition of the full-time care required for a CR. “Carer allowance”, on the other hand is a non income tested allowance paid as a supplement to account for the level of assistance provided to the care receiver and which is regarded as a compensator for the hours which are lost from the workforce. The latter allowance is clearly intended for someone who has time available to do some work but loses some of the opportunity for work because of the commitment to the care of a CR. The former benefit (carer payment) is clearly designed as a compensator for the loss of all opportunity to do paid work (Re Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689).
26. The concept of “constant care” is therefore a reflection of the needs of the CR. That must be the primary focus of the valuation of need and whether the applicant is “freed up to do other things”, including employment.
27. Considering the evidence in light of the law stated above, I now consider the tasks which the applicant claims and the times which he submits are required to meet the demands of the CR. In that context, I make the following findings of fact:
(1)The applicant is an empathetic person and has given strong support to the CR over a long period of time. This support is provided for a man who is severely sight impaired but is employed full-time in a medium sized organisation in Brisbane city.
(2)The applicant rents the upstairs part of the house owned by the CR.
(3)The applicant works on average three hours per week.
(4)The CR not only has a sight impairment but has other needs as well. In addition, he has some psychological impairments which have been highlighted by the report of Dr T Schramm.
28. When Mr Nolan cross examined the applicant about the time to realistically perform certain tasks for the CR, I found an objective assessment for any ordinary person to perform domestic tasks he claimed would conclude that the times claimed were overestimated. I note some variation in the applicant’s version of requirements presented to this Tribunal compared to those which he presented to the SSAT. For example, the applicant told this Tribunal that he needed to stay in the bathroom for the whole 30 minute period that it takes the CR to have a bath each morning. However it seems from the SSAT decision that he gave evidence to the effect that he used some of that time productively by re-making the CR’s bed. He also told the SSAT that he left home at approximately 7:30am in order to get the CR to work by 8:00am. He told this Tribunal that they left home at 8:00am so that the CR could be at work by 8:30am. Based on the evidence given to the SSAT, the medical appointments for the CR every Tuesday seemed to require the applicant’s attendance. However, before this Tribunal it was claimed that the applicant walked with the guide dog and attended to its needs while the CR was in the doctor’s surgery.
29. Of the commitment required to the CR’s needs in the morning, the applicant’s claim of 4.5 hours from 4:30am to 9:00am seems excessive for the functions performed. The respondent’s assertion that the tasks could be done in 1.5 hours seems to understate the demands relating to supporting the CR as there are undoubtedly times when the applicant would necessarily have to be unproductive. The functions performed between 5:00am and 9:00am would seem to me to be able to be achieved in 2 hours. All of the times claimed by the applicant cannot realistically be regarded as being spent on the direct support of the CR.
30. The applicant’s claim for minimum care in the evening is 4 hours from the time he leaves to pick up the CR from work. This time is said to be taken up by preparing dinner and completing other monitoring and support tasks for the CR until 11:00pm. I think a reasonable allowance to undertake the work claimed by the applicant for times in the afternoon to the completion of dinner is 2 hours. Those determinations are relevant only for five days per week and in addition, 2 hours should be allowed for Saturdays (given the applicant works on Saturday mornings); and 3 hours for Sundays. In addition to this, there are clearly some emotive issues with the CR and that some support by the carer is justifiable and I have allowed 3.5 hours per week for that. I regarded the Tuesday appointments as requiring an additional hour over and above the normal week day commitments to the CR and that shopping for the CR also takes some additional time and an additional hour per week would not seem unreasonable. This then totals 30.5 hours per week.
31. On this basis I cannot accept that it would be a full-time role for the applicant amounting to “constant care”. I do recognise though that providing direct care for a disabled person may seem intense. A reality check on the reasonableness of this work can be made in a context that the CR works full-time in the city from Monday to Friday (excluding Tuesdays). From 8:00am to 4:00pm on each day, he is not at home and thus does not require care from the applicant. It could therefore be regarded as “episodic” rather than “constant”, which prevents the applicant participating in the workforce. In reaching this conclusion, I form the view that the applicant is completely dedicated to the CR and provides a professional level of support. However, being present for all the hours claimed because he is highly empathetic and motivated to care for the CR is a different matter to what the legislation calls for. On the evidence provided, I would not regard the times taken for the tasks performed as “constant care”.
32. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: .........................[Sgd]..................................................
Kate Slack, Research AssociateDate/s of Hearing 1 July 2010
Date of Decision 23 July 2010
For the Applicant Applicant’s sister
Solicitor for the Respondent Mr Phil Nolan, Sparke Helmore Lawyers
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