El Osman; Secretary, Department of Social Services and (Social services second review)

[2015] AATA 708

El Osman; Secretary, Department of Social Services and (Social services second review) [2015] AATA 708 (15 September 2015)

Division

GENERAL DIVISION 

File Number(s)

2014/5302

2014/5308

Re

Secretary, Department of Social Services

APPLICANT

And

Zena El Osman

RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	15 September 2015
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides Ms El Osman did not qualify for carer payment on 9 May 2014.

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Senior Member J F Toohey

CATCHWORDS – social security – carer payment – cancellation – whether payment should have been cancelled – whether mother provided constant care – whether provision of constant care severely restricted mother’s capacity to undertake paid employment – decision under review affirmed

Legislation

Social Security Act 1991 ss 197A, 197B,
Social Security (Administration) Act s 80(1)(a)

Tribunal Amalgamation Act 2015

Cases

Re Drake and Minister Immigration and Ethnic Affairs (No 2) 2 ALD 634

Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. This matter concerns a decision by Centrelink to cancel Ms Zena El Osman’s carer payment and carer allowance in respect of her eight-year-old daughter.  The payments were cancelled on 9 May 2014.

2. On 2 September 2014, the Social Security Appeals Tribunal (SSAT) decided that Ms El Osman’s carer payment and carer allowance should not have been cancelled and set aside Centrelink’s decision.

3. On 1 July 2015 the SSAT amalgamated with the Administrative Appeals Tribunal (AAT) and became the Social Services and Child Support Division of the AAT.  Under the transitional provisions of the Tribunal Amalgamation Act 2015, this application for review is taken to be an application for AAT second review. The Secretary of the Department of Social Services seeks review of the SSAT’s decision concerning Ms El Osman’s carer payment.  The Secretary accepts that, on 9 May 2014, she qualified for carer allowance and that payment should not have been cancelled but contends that the decision Ms El Osman remained qualified for the carer payment on the date it was cancelled was not correct. 

4. For convenience, I will refer to the Secretary as Centrelink.

   Who qualifies for carer payment

5. To qualify for carer payment, a person must come within one of the categories set out in s 197A of the Social Security Act 1991 (the Act). Where the care receiver is a child with a severe disability or a severe medical condition, a person must satisfy the criteria in s 197B of the Act. They are:

   (a)the person personally provides constant care for a person (the care receiver) aged under 16 with a severe disability or severe medical condition; and

   (b)the person has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the care receiver; and

   (c)a treating health professional has certified in writing that, because of that disability or condition:

   (i)        the care receiver will need personal care for 6 months or more; and

   (ii)the personal care is required to be provided by a specified number of persons; and

   (d)the provision of constant care by the person severely restricts the person's capacity to undertake paid employment; and

   (e)       the requirements of subsections (2), (3) and (4) are met.

6. Section 80(1)(a) of the Social Security (Administration) Act 1999 provides that, if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, or that it is not, or was not, payable to that person, the Secretary is to determine that the payment is to be cancelled or suspended.

7. It is not in dispute that Ms El Osman’s daughter has a severe disability.  It is not in dispute that, when the carer payment was cancelled, Ms El Osman had a qualifying rating of intense for caring for her daughter, and her treating doctor had provided a certificate in accordance with s 197B(c). 

8. Centrelink submits, however, that the decision to cancel Ms El Osman’s carer payment was correct because, at the date of cancellation:

   (i)she did not satisfy s 197B(a) because she did not provide constant care for her daughter; and

   (ii)she did not satisfy s 197B(d) because her capacity to undertake paid employment was not severely restricted by the provision of constant care for her daughter.

   The issue

9. I have to decide whether, on 9 May 2014, when her carer payment was cancelled:

   (i)Ms El Osman provided constant care to her daughter; and

   (ii)her capacity to undertake paid employment was severely restricted by the provision of constant care to her daughter.

   Mr and Ms El Osman’s claims for carer payment and carer allowance

10. Ms El Osman’s daughter has been diagnosed with attention deficit hyperactive disorder (ADHD) and developmental delay.  In a report dated 12 June 2014, Dr Neil Ginsberg, the paediatrician who has looked after her since she was born, reported that she was born with an undiagnosed syndrome and remains under the care of the Genetics Clinic at The Children’s Hospital.  Her diagnosis remains uncertain but, from a practical point of view, she has a number of problems that make her very difficult to manage.  She is “an active young lady who can be extremely obsessive in her tendencies.  She has difficulty sleeping at night and this makes her management extremely tricky for the whole family”.  He said she was “generally progressing well” at school but her developmental delays mean she requires extra assistance both at school and at home.

11. Ms El Osman applied for carer payment and carer allowance in respect of her daughter on 16 July 2013.  Her claims were granted with effect from 11 July 2013.

12. Also on 16 July 2013, Ms El Osman’s husband applied for carer payment and carer allowance in respect of Ms El Osman.  His claim was granted with effect from 11 July 2013.  At that time, Ms El Osman was suffering from a number of serious medical conditions including bipolar disorder and depression. 

13. Dr Aladdin Matter, Ms El Osman’s general practitioner from January to July 2013, completed a medical report in support of Mr El Osman’s claim for carer payment and carer allowance.  He described Ms El Osman as having severe depression and requiring continued monitoring and assistance.  He described her daily needs for assistance with activities such as toileting and mobility.  He indicated that she showed signs of depression and memory loss most of the time, was withdrawn from social contact most of the time, and sometimes displayed aggression towards herself or others, and disinhibited behaviour.

    Was Ms El Osman providing constant care for her daughter on 9 May 2014?

14. Ms El Osman gave evidence before the Tribunal.  Her husband was unable to attend because of illness.  She described her own condition as having greatly improved since July 2013.  Around the end of 2014, Centrelink cancelled Mr El Osman’s carer payment and carer allowance in respect of Ms El Osman.  It is not clear whether his payments were cancelled because her condition had improved or for some other reason but that is not something I have to consider in this decision.

15. Centrelink maintains that, because of her own medical conditions, Ms El Osman was unable to provide constant care to her daughter when her payment was cancelled in May 2014. 

    Dr Matter’s evidence

16. Dr Matter gave evidence before the Tribunal confirming the contents of the report he provided in support of Mr El Osman’s claim for carer payment and carer allowance.  He said Mr and Ms El Osman’s description of her condition at the time was generally consistent with his own observations of her.  His clinical notes around that time indicated that Ms El Osman had symptoms including bipolar disorder and severe depression; she had difficulty completing daily household tasks and her husband was the primary carer as she needed daily and constant assistance.  On 13 July 2013, when he completed the report in support of Mr El Osman’s claim, he noted “unable to care for children”. 

17. Ms El Osman told the Tribunal that, even in her darkest moments, when she could not care for herself, she always put her daughter first and was able to provide her with care.  Giving evidence before the Tribunal, Dr Matter said he thought it would be difficult for someone with the level of disability that Ms El Osman had at that time with activities such as toilet use, mobility, dressing herself and bathing, as well as some of her psychological symptoms, to help another person with those activities.

18. Dr Matter’s evidence supports Centrelink’s contention that, around July 2013, Ms El Osman was unable to provide constant care for her daughter.  However, he did not see Ms El Osman after July 2013.  His clinical notes and oral evidence provide background but do not shed light on her medical conditions in May 2014, when her payments were cancelled, or her capacity to provide care for her daughter at that time. 

19. There is no medical evidence concerning Ms El Osman’s medical condition around May 2014.  I accept Ms El Osman’s evidence that her condition has greatly improved since that time.  In light of that evidence, the argument that she was unable due to her medical conditions to provide constant care for her daughter at that time tends to fall away. 

    The meaning of constant care

20. “Constant care” is not defined in the Act.  Guidance is found in the Guide to Social Security Law (the Guide).  The Guide represents government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister Immigration and Ethnic Affairs (No 2) 2 ALD 634.

21. The Guide at Part 1.1.C.310 describes constant care as follows:

    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 the 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.  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.

22. The policy has been applied by the Tribunal in decisions such as Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689, where the Tribunal said 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”.

23. The policy in the Guide recognises that the mere fact that a child attends school does not disqualify a person from carer payment.  However, matters that need to be taken into account include whether the carer attends school with the child, whether the carer is “on call” while the child is at school and is regularly required to attend the school to support and actively attend to the care of the child: Part 1.1.C.310.

    Attendance at school

24. In 2013, Ms El Osman’s daughter was attending a public primary school.  She had difficulty fitting in and learning, and the school frequently called Ms El Osman to come to the school during the day to help with matters such as toileting or to manage her daughter’s behaviour.  Since January 2014, her daughter has been attending a school for children with special needs.  Her school reports show she is learning and developing.  She has also been taking medication which Ms El Osman says has made her calmer.

25. School attendance records show that, in 2014, Ms El Osman’s daughter was absent for a total of four days, and on 59 days had partial absences meaning that she was more than 15 minutes late after the school bell rang at 9.00am.  Ms El Osman gave evidence that, on those days, her daughter could be up to 30 minutes late for school, but otherwise she attends school every day until 3.00pm when Ms El Osman collects her.  She is often late for school because of the time it takes to manage her behaviour in the morning and get her ready for school.  Ms El Osman gave evidence that she has not been called up to the school on a single occasion on account of her daughter’s behaviour because the staff know how to deal with her.

    Dr Ginsberg’s evidence

26. Dr Ginsburg spoke to the Tribunal by telephone.  Ms El Osman’s daughter has been under his care since she was born and he sees her now approximately every six months.  He said he could not be sure what changes attending the special school had made to her overall development.  He said it is always easier to manage a child with her disabilities in a smaller class at a special school but he was not sure it would have made much change to her behaviour outside school.  He said her intellectual disability will remain but some of her other conditions, in particular ADHD and anxiety, may fluctuate from time to time.  She has a moderate need for assistance during the day but less so at night.

27. Asked whether he thought Ms El Osman was providing constant care to her daughter in May 2014, Dr Ginsburg said that, like any eight-year-old, she needs a fair amount of care, supervision and attention but, in addition, her medical conditions are such that she requires constant monitoring, care and attention in relation to matters such as feeding, dressing and toileting.

    Consideration

28. I accept Ms El Osman’s evidence that her own condition had improved by May 2014.  I am satisfied that, by that time, she was capable of providing constant care to her daughter. 

29. The evidence as to whether Ms El Osman was actually providing constant care at that time is finely balanced.  Her evidence is that, once her daughter started the special school in January 2014, there were no occasions on which she was called up to the school.  The question is whether, for the remainder of the day and night, the care she provided was of an intensity that roughly equated to a full working day.

30. Ms El Osman’s evidence is that her daughter requires assistance with all activities.  While she has improved since going to the special school and being on new medication, Ms El Osman says she still has to attend to her every need.

31. Dr Ginsberg’s evidence about the level of monitoring, supervision and care that Ms El Osman’s daughter needs, including the difficulty she has sleeping, lends support to the finding that Ms El Osman was providing constant care at the relevant time.  I accept that it was a much greater level of care than required by most eight-year old children.

32. However, even if I am satisfied that Ms El Osman was providing constant care for her daughter in May 2014, I am not satisfied that it severely restricted her capacity to undertake paid employment.

    Was Ms El Osman’s capacity to undertake paid employment severely restricted by the provision of constant care to her daughter?

33. Ms El Osman gave evidence that her younger child, who is three years old, has been attending day care three days each week this year.  This has enabled her to work part-time in a friend’s business for an average of 15 hours across three days each week.  She says she would love to work longer hours.

34. Ms El Osman was asked whether she would have worked in 2014 had she been able to.  She said she would have but she did not have day care for her younger child at that time.  As there were no occasions when she was called up to the school after January 2014, I am satisfied that Ms El Osman was not restricted in her capacity to undertake paid employment while her daughter was at school.  I am satisfied that the reason she was not able to work during those hours was that she had another child to care for. 

35. As discussed above, the policy underlying carer payment is to provide income support to a person whose capacity to work is “severely restricted” because of his or her caring responsibilities.  “Severely restricted” is not defined or quantified.  The Guide refers to the policy as being to provide support to a person who is unable to undertake “substantial employment”.

36. I am satisfied that, if Ms El Osman did not have to care for her younger child on the days she does not have day care for him, she would have the capacity to undertake on average four to five hours paid work each day while her daughter is at school.  I find that 20 to 25 hours of regular paid employment each week would be “substantial employment”. 

37. On this basis, I am not satisfied that Ms El Osman’s capacity to undertake paid employment as at 9 May 2014 was severely restricted by the provision of constant care to her daughter.

    Conclusion

38. For these reasons, I find that Ms El Osman did not qualify for carer payment at the time that her payment was cancelled. 

39. The decision of the SSAT is set aside and in its place is substituted the decision that Ms El Osman did not qualify for carer payment on 9 May 2014.

40.     I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 15 September 2015

Date(s) of hearing		9 September 2015
Representative for the Applicant		Self-represented
Representative for the Respondent	Mr Steven Davidson, Department of Human Services