Elgar and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Elgar against a decision by the Secretary of the Department of Social Services affirming a determination that he was not qualified for Carer Payment. The dispute centred on whether Mr Elgar had satisfied the qualification criteria, specifically the requirement to provide "constant care" to his wife, during certain periods when he was undertaking full-time study.

The primary legal issues before the Tribunal were whether Mr Elgar had provided "constant care" during the periods in question, and whether he had exceeded the statutory limit of 63 days of temporary cessation of care in a calendar year. The Tribunal was required to consider the impact of Mr Elgar's study commitments on his qualification for the payment and whether any "special reason" existed to extend the 63-day limit for temporary cessation of care.

The Tribunal agreed with the Secretary that Mr Elgar had not provided constant care during the relevant periods, noting that his study commitments exceeded the 25-hour weekly limit stipulated by the Act. The Tribunal found no discretion in the relevant legislative provision regarding the 25-hour limit. Furthermore, the Tribunal determined that Mr Elgar's six-month course did not constitute a temporary cessation of care and that he had exceeded the 63-day limit for respite. The Tribunal also considered the meaning of "special reason" for extending the 63-day period, referencing Federal Court authority and previous AAT decisions. It concluded that ignorance of legal obligations did not constitute a special circumstance.

The decision under review was affirmed.